Gooch v. State
This text of 340 S.W.2d 299 (Gooch v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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The offense is felony theft; the punishment, 4 years.
We are confronted in this case with the rather unpleasant task of deciding between two sets of bystanders’ bills which raise the question of whether or not the district attorney commented on appellant’s failure to testify.
In the court’s bill, he sets forth the argument as he remembers it and then concludes with this sentence, “At no other time was there any reference by any attorney during the course of argument to the failure of the defendant, Ann Gooch, to testify in the trial of this cause.” This bill is supported by the affidavits of seven bystanders; most of them recite that they did not hear the district attorney say, “The Defendant on trial never denied such admission.”
The strongest affidavit from the state’s standpoint is that of juror Slater which recites the argument as he remembered it and concludes with this sentence, “At that time the Distirct Attorney [250]*250had not said, ‘The Defendant on trial never denied such admission.’ ”
The state, through her district attorney, filed a bystanders’ bill in which he recites, though he does not acknowledge under oath, what his argument was, and the offending sentence is not included.
On the other hand, we have five affidavits in the form of appellant’s bystanders’ bills which recite unequivocably that the prosecutor in his argument said, “The Defendant on trial never denied such admission.”
We must decide this case from the bystanders’ bills. Palmer v. State, 157 Tex. Cr. Rep. 96, 246 S.W. 2d 893.
Though not without difficulty, we have concluded that we must accept the affidavits of the five persons who were present and who swear that such statement was made.
This being so, reversible error is reflected by the prosecutor’s comment upon the failure of the accused to testify, and the case must be reversed and remanded.
It is so ordered.
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Cite This Page — Counsel Stack
340 S.W.2d 299, 170 Tex. Crim. 249, 1960 Tex. Crim. App. LEXIS 2160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gooch-v-state-texcrimapp-1960.