Jones v. State

The State's motion for rehearing in this case challenges the application of the rule in Wimberly v. State, 6 S.W.2d 120, as authority for the conclusion reached on the facts of the instant case. It is also asserted that the case of Brumbelow v. State, 54 S.W.2d 528, which followed the Wimberly case, is not in point because the argument in that case was not made in connection with the reading of the charge. We have given careful consideration to the two authorities, together with the facts of the case at bar, and also the insistence of the State's Attorney that the Wimberly case should be specifically overruled or that the motion for rehearing should be granted and this case affirmed.

We have concluded that a proper judgment has been rendered in the case and that the State's motion should be overruled. We cannot agree with the State's Attorney that the opinion is inconsistent with the Wimberly case, or the Brumbelow case. In the original opinion, Judge Christian followed the doctrine heretofore laid down that the District Attorney had the right to read the court's charge, but the error calling for a reversal of the instant case is in the statement which the prosecuting attorney made to the jury after reading a part of the court's charge. This is the point here held to be an allusion to the fact that appellant did not testify. If it should be understood that the original opinion in this case does not hold as error any part of the attorney's statement so far as it embraced a reading of the charge, but that error was committed in the additional statement which the bill of exception shows that he made to the jury and which was not contained in the court's charge, then it is clear that the opinion is consistent with both of the previous authorities under discussion. We think that the opinion in the Wimberly case, as well as that in the McPhail case, 26 S.W.2d 218, correctly stated the law and that the originial opinion in this case is consistent with them.

The State's motion for rehearing in overruled.