The opinion
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on appellant’s motion for rehearing.
LATTIMORE, Judge.
In his motion for rehearing appellant urges that even if we be correct in our holding that the argument of the State, discussed in our opinion, had reference to his failure to say anything or make any explanation at the time Roy Lay met him after the alleged homicide, — such argument would still constitute reversible error. We have read with interest the authorities cited by appellant in his motion, and have again gone over the others referred to in his original brief on this point, but are of opinion that the facts in each case cited differ so materially from those before us as that the announcement in none of said cases support appellant’s contention here.
It is clear from the record that upon this trial the State did not attempt to prove by Mr. Lay that appellant did or did not make any statement when the two men met after the homicide, or at any time before appellant was taken away to jail. Lay was used as a witness to prove that when he first met appellant after the killing, the pants and shoes of appellant were wet and showed to have had mud on them recently; that they had been wiped off, etc. The record further shows that when appellant’s counsel took Mr. Lay upon cross-examination, he was asked and testified that he and appellant had known each other from boyhood, and when they met that night appellant first accosted Lay. We quote: “He (appellant) holloed at me, and asked me for a cigarette. I said to him ‘Ike, where have you been, every law in town is looking for you,’ or something to that effect. His response was, ‘What for?’ In other words, when I told him the officers were hunting for him he asked me ‘What for.’ I didn’t tell him just what they were hunting him for. Ike then said, ‘Well, here I am,’ or something to that effect. That was the extent of the conversation I had with Ikey before the officers came up and placed him under arrest.”
These facts clearly differentiate this case from all those cited in appellant’s original brief and in support of his motion for rehearing. See Skirlock v. State, 272 S. W., 782 ; Williams v. State, 272 S. W., 783 ; McIlveene v. State, 272 S. W., 185 ; Brown v. State, 276 S. W., 929 ; Russell v. State, 12 S. W. (2d) 1027 ; Henson v. State, 276 S. W., 926 ; Taylor v. State, 42 S. W. (2d) 426 ; Goodman v. State, 285 S. W., 821 .
Certainly the accused has a right to keep silent when arrested, and the fact of such silence may not be brought out by the State either in testimony or in argument as a guilty cir
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cumstance. Likewise when under arrest and unwarned, — statements of the accused may not be offered by the State; but no such rule can be invoked here, nor has it any application. In this case the accused brought out as a defensive matter from officer Lay that when he first met appellant after the shooting appellant accosted him and that the conversation was as above quoted, supporting the proposition, on the part of the defense, that appellant knew nothing of the shooting, and hence knew nothing as to why the officers were looking for him. Appellant not only proved by Lay what was then said by the appellant to Lay, but also went further and proved by Mr. Lay that this was all appellant said. It would certainly be a departure for this court to say that the accused might prove as defensive facts all that he had said on an occasion when he met the officers, and might go further and prove that he said nothing else at such time, apparently having in mind' that the statement so made or the silence so proved was favorable to the accused; and that the State would then be forbidden to meet by proof or argument such defensive proof and procedure. In all of the cases above cited and in others appearing in appellant’s brief and motion, the facts show that the State took the initiative and made the proof and used the silence of the accused as a weapon of attack upon him. No such facts appear in this record.
It has been said that the accused may waive anything save his right of trial by jury, — but he may now waive that in appropriate cases. So when he waives his right to keep from the jury the fact that he said nothing when arrested, and when he in legal effect introduces proof as to defensive statements made by him when first accosted by officers, and introduces as a defense the fact that he said nothing beside what he himself proved to be his statements at such time, — he has waived his right of complaint at argument of the State, which goes no further than to call the attention of the jury to what had been proved by the defendant.
We are of opinion that the case was properly decided, and that the motion for rehearing by appellant should be overruled, and it is so ordered.
Overruled.