(Syllabus.)

Appeal and Error — Trial — Reversible Error in Judge's Statement Regarding Defendant Taking Witness Stand. It is error for the trial judge during the course of the trial to state in the presence of the jury that the defendant may take the witness stand. Where in such case the defendant does not take the stand, the error should be considered in connection with the entire record, and, unless the evidence of guilt is so clear that the error could not have been prejudicial, the cause should be reversed.

Appeal from County Court, Pittsburg County; S.F. Brown, Judge.

Lincoln Sweeney was convicted of having the unlawful possession of intoxicating liquor, and he appeals. Reversed and cause remanded.

O.H. Whitt, for plaintiff in error.

J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

EDWARDS, J. The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pittsburg county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $100 and to serve 60 days in the county jail.

The record discloses that at the time charged certain officers went to the residence of defendant, made a search, and found a quantity of choctaw beer. The state introduced testimony that this was intoxicating. The defendant did not testify and offered no evidence. The evidence for the state is not strong. However, if the record were free from error, it would be sufficient to sustain the judgment. During the course of the trial, the judge, in ruling

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on the admissibility of certain evidence, stated in substance that this questioned evidence was admissible only in the event defendant "went on the stand and for the purpose of impeaching his testimony." Section 2698, Comp. Stat. 1921, forbids mentioning the failure of defendant to become a witness in his own behalf. While the mention here was before the taking of testimony was closed, it was within the inhibition of the statute. The error of the trial court in this particular, considered in connection with the entire record, requires a reversal. Dorsett v. State, 16 Okla. Cr. 65, 180 P. 557; Shelton v. State, 49 Okla. Cr. 430, 295 P. 240.

The case is reversed and remanded.

DAVENPORT, P.J., and CHAPPELL, J., concur.