Sanders v. State

MORROW, Presiding Judge. The offense is unlawfully receiving stolen property ;, penalty assessed at confinement in the penitentiary for two years. The evidence is sufficient to justify the conclusion that appellant was in possession of a stolen automobile. His confession was introduced in evidence, from which the theory arises that he was ignorant of the fact that the automobile was stolen. Appellant did not testify but'introduced evidence supporting his' reputation as a law-abiding citizen. In his closing argument counsel for the state used the following language: “Gentlemen of the Jury, we cannot tell you whether this defendant knew that car was stolen or not; we cannot go over there where he sits and split his mind open with an axe and show it to you.” Objection to the argument as a comment upon the appellant’s failure to testify was made, and the request to withdraw it from the consideration of the jury was overruled. This matter is presented for review. Counsel representing the state in [410] this court concedes that the remarks offend against the statute (article 710, C. C. P.) in which it is said that the failure of the accused to testify shall not be alluded to or commented on by counsel in the cause. Application of the statute has been made in many cases. See Thompson v. State, 19 S. W. (2d) 316; Ainsworth v. State, 30 S. W. (2d) 310; Green v. State, 44 S. W. (2d) 726; Sweet v. State, 23 S. W. (2d) 370. The judgment is reversed and the cause remanded. Reversed and remanded.