Hardy v. State (278 S.W.2d 312, 1955)

DAVIDSON, Judge.

This is. a conviction for the unlawful sale of whisky in a dry area; the punishment, a fine of $100 and sixty days’ confinement in jail.

Hynd,- an agent of the Liquor Control Board' to: whom it was alleged that' appellant sold'-tlie'Vhisky, testified that the salé occurred at appellant’s home and that no other person \yas present. In fact, the witness testified, “I was by myself,” and answered affirmatively the question, “And Elmer Hárdy (appellant) was alone?”

The appellant did not testify as a witness in the case.

Bill o.f Exception No. 9, which complies with the requirements of Fowler v. State, Tex.Cr.App., 274 S.W.2d 705, certifies that state’s counsel-stated in his argument to the jury the following:

“No evidence herein to show that this d~ft &dnt make this sale-this Swday morning ”

Appellant’s objection that the argument was a reference'to the failure of the appellant to testify was overruled.

This-was ¿ direct reference to the failure of the appellant to testify and violative of Art. 710; C.C.P. See, also, Fowler v. State, supra.

The conclusion expressed as to the variance between the complaint and the information in the case of Hardy v. State, Tex.Cr.App., 279 S.W.2d 345, is here applicable. For' the reasons stated, the 'conlplkint and the' information are sufficient. • v-- h-.--. ■■

Because- of the erroneous argument, the judgment ,is reversed and the. cause ip remanded,. - .