Harmon v. State (113 S.W.2d 1240, 1938)

HAWKINS, Judge.

Conviction is for possessing whisky for the purpose of sale in dry territory; punishment being assessed at a fine of $100.

It was alleged in the complaint and information that Franklin county was dry by virtue of an election held in said county in 1903, which-resulted in prohibiting the sale of intoxicating liquor, which result was declared and published.

No evidence appears in the statement of facts showing that such election was ever held, or that the result thereof was ever determined, declared, and published. Among other cases holding that in the absence of such evidence a reversal must follow, we cite Humphreys v. State, 131 Tex.Cr.R. 383, 99 S.W.2d 600; Green v. State, 131 Tex.Cr.R. 552, 101 S.W.2d 241; Cunningham v. State, 132 Tex.Cr.R. 63, 103 S.W.2d 413; Stewart v. State, 132 Tex.Cr. R. 79, 102 S.W.2d 416; Baldridge v. State, 132 Tex.Cr.R. 590, 106 S.W.2d 700.

We find a complaint that an argument of State’s counsel was a comment on the failure of appellant to testify. In the event of another trial, such argument should not be indulged.

The judgment is reversed and the cause remanded.