No. 25528.

243 S.W.2d 837 (1951)


Court of Criminal Appeals of Texas.

November 28, 1951.

Attorney(s) appearing for the Case

James L. Cutcher, Childress, for appellant.

George P. Blackburn, State's Atty., Austin, for the State.


Appellant was convicted for the sale of intoxicating liquor in a dry area and assessed a fine of $500.

The evidence amply sustains the conviction. The appellant did not testify and offered no evidence to contradict that presented by the state. The appeal presents only one question by which reversal is sought.

The county attorney, in arguing the case to the jury, said: "If Ollie did not sell the whisky he would have gotten on this stand and told you that he didn't sell it." Objection was timely made and the court instructed the jury not to consider the statement.

The argument was clearly in violation of Art. 710, Code of Criminal Procedure, and it has frequently been held that the instruction to not consider such statement cannot cure the error. See annotations under Footnote 41, Vernon's Ann.C.C.P.

For the error in the argument the judgment of the trial court is reversed and the cause is remanded.


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