Gatlin v. State

• Decision Date: 21 January 1914
• Citation: 163 S.W. 428
• Parties: GATLIN v. STATE.
• Court: Texas Court of Criminal Appeals

163 S.W. 428

GATLIN v. STATE.

Court of Criminal Appeals of Texas.

January 21, 1914.

Rehearing Denied February 18, 1914.

Appeal from District Court, Liberty County; L. B. Hightower, Judge.

Martin Gatlin was convicted of horse theft, and appeals. Affirmed.

Stevens & Stevens, of Liberty, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of horse theft, and his punishment assessed at two years' confinement in the state penitentiary.

There is a bill of exceptions in the record that recites that, while the district attorney was cross-examining the witness Gilbert Freeman, the following proceedings took place: "Q. You say you saw the horse Martin Gatlin rode 12 months afterwards, and you took him to be the same horse? Ans. Yes, sir; but just wait; will you let me say what Martin told me? District Attorney No, sir; Martin is here and can tell it himself; that would be hearsay." Defendant contends that is a reference to defendant's failure to testify; that it is violative of the statute, and called the attention of the jury to the fact that appellant could testify. The court instructed the jury: "You are further charged that the fact that the defendant has failed to testify in this case must not be used against him as a circumstance, and the jury must not allude to the failure of the defendant to testify while deliberating upon their verdict in this case." This charge in and of itself calls the attention of the jury to the fact that a person on trial can testify if he so desires, and yet the giving of it has been approved in an unbroken line of decisions for a number of years. The district attorney did not comment on the fact that appellant had failed to tell it, and made no allusion to the matter after this incident connected with the examination of the witness. When the witness asked him if he would let him tell what Martin had said, the district attorney replied, "No, Martin is here and he can tell himself; it would be hearsay." The fact that Martin was there was known to every juryman; he had to be there during the trial. That furnished the jury no information, and we think every intelligent man now knows that a person on trial can testify if he so desires. At the time this remark was made, the district attorney could not and did not know whether or not Martin Gatlin (defendant) would testify. It was an incident of the trial, and not intended, and could not be construed by the jury as criticising or commenting upon the failure of the defendant to testify. It is true that the statute (article 790) provides that the failure of a defendant to testify shall not be alluded to nor commented on by counsel, but can this be said to be a comment on his failure to testify. Of course, it is better that such remarks should not be made; but where they are incidentally made, as in this instance, does this present ground for reversal, when the...