Wilson v. State

• Decision Date: 11 November 1908
• Citation: 113 S.W. 529
• Parties: WILSON v. STATE.
• Court: Texas Court of Criminal Appeals

113 S.W. 529

WILSON v. STATE.

Court of Criminal Appeals of Texas.

November 11, 1908.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

Charles T. Wilson was convicted of horse theft, and appeals. Reversed, and remanded for a new trial.

F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

This is an appeal prosecuted from the district court of McLennan county on a conviction for theft of a horse. The trial resulted in a conviction of theft as charged, and the punishment of appellant was assessed at two years' confinement in the penitentiary.

There are a number of questions made by appellant; but as the case must be reversed on account of the argument of the county attorney, and as the other matters may not arise on another trial, we deem it unnecessary to discuss them.

The record shows this is the second trial of appellant on this same charge. On this trial appellant became a witness in his own behalf, and on cross-examination, over the protest of appellant, the county attorney asked him if his testimony on this trial was the same as on the former trial. This was objected to, because it was inadmissible, irrelevant, immaterial, and highly prejudicial to appellant, in that it disclosed to the jury the fact that there had been a former trial of said cause, and because the statute inhibits any allusion to or comment on the fact that the defendant failed to take the stand in his own behalf in said cause. Following this objection, and in argument, counsel for the state said to the jury that the defendant on a former trial of said case failed to take the stand and swear to the alibi pleaded in said cause; that he failed to take the stand in his own behalf in said former trial; that this defense of alibi was an afterthought of defendant, and was a fabrication invented since said trial. These remarks of the county attorney were objected to, and the court requested to withdraw same from the jury, and to instruct the jury not to consider same, which objections and request were then and there by the court overruled.

Both the question asked and the argument made, as complained of, were improper, and should not have been allowed. Article 770 of the Code of Criminal Procedure of 1895 provides: "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...