Counsel for appellant has filed a motion for rehearing which has challenged the attention of the court and we have given the same careful consideration.
The language used by state's counsel which is urged as having referred to the failure of appellant to testify is set out in the original opinion, and the circumstances under which the argument was made is also recited
clearly and fully, together with the argument of counsel for appellant in the same connection.
The rule with reference to "implied" or "indirect" reference to the failure of an accused to testify is stated in the following language in Boone v. State, 90 Tex.Crim. Rep.,235 S.W. 580, 582: "The statute is not shown to have been infringed, however, by disclosing that counsel, in argument, used language which might be construed as an implied or indirect allusion to the failure of the accused to testify. To come within the prohibition the implication must be a necessary one; that is, one that cannot reasonably be applied to the failure of the accused to produce other testimony than his own. Where there is other evidence, or the absence of other evidence, to which remarks may reasonably have been applied by the jury, the statute is not transgressed."
Many authorities are cited in the opinion. Later cases are Hubbard v. State, 94 Tex.Crim. Rep., 251 S.W. 1054; Grimes v. State, 100 Tex.Crim. Rep., 271 S.W. 898; Howard v. State, 108 Tex.Crim. Rep., 1 S.W.2d 289; Howard v. State, 111 Tex.Crim. Rep., 13 S.W.2d 80. The difficulty we are confronted with in the present case is in the application of the rule under the facts. One witness was named by Mrs. Batson who could have been called by appellant to contradict her on some facts testified to by her. Both Mr. and Mrs. Batson testified that other parties had been seen apparently searching for something at a place near which appellant a short time before had left something. The evidence in its entirety warranted the jury in reaching the conclusion that the facts reflected appellant's method of delivering whisky to his customers, and that these searching individuals were customers of appellant. If so, he knew them and could have produced them. The argument complained of could have referred to a failure on the part of appellant to produce the witnesses indicated, one of whom had been named. If this be true, the statute (Code Cr. Proc., 1925, art. 710), prohibiting a reference to appellant's failure to testify was not violated. Jones v. State, 85 Tex.Crim. Rep., 214 S.W. 322; Howard v. State, 111 Tex.Crim. Rep., 13 S.W.2d 80.
We disclaim any intention to modify or depart from the announcement made by the court in Gothard v. State,99 Tex. Crim. 452, 270 S.W. 177, to which appellant has referred in his motion. The language quoted by him from that opinion was intended as a timely warning to prosecutors in cases where appellant did not testify and produced no evidence. The application of the rule announced in Boone v. State, supra, in Gothard's case was thought to demand a reversal. The application of the same rule has caused us to reach a different conclusion in the present case under the facts and circumstances presented by the court's qualification to the bill of exception and the evidence found in the record.
Our attention has been directed to an error in the sentence wherein
it fails to follow the requirements of the Indeterminate Sentence Law (article 775, C. C. P., as amended by Acts 42d Leg. (1931), c. 207, sec. 1 [Vernon's Ann. C. C. P., 775]). The sentence will be reformed to direct appellant's incarceration in the penitentiary for not less than one nor more than two years.
The sentence thus having been reformed, the motion for rehearing will be overruled.
Sentence reformed and motion overruled.