Appellant insists the record discloses that the jury were guilty of misconduct in discussing his failure to testify. We have again examined the testimony adduced on the motion for new trial and are constrained to overrule his contention.
The first juror introduced by appellant on the hearing of the motion testified that appellant's failure to take the stand was not discussed among the jurors. However, he said that he heard the matter mentioned but that the juror making such mention was promptly reproved.
The second juror testified that there was no discussion of the matter. He said: "Something was mentioned about that the defendant didn't take the stand, and Mr. Lopoo immediately called his hand and told him he mustn't consider it; he said it wasn't to be considered, and that was all there was to it."
The next juror introduced by the appellant testified that he heard the matter mentioned once or twice but did not know exactly what was said. We quote in part from his testimony: "Yes, sir, somebody mentioned the fact that the defendant didn't testify, and he was immediately stopped, and he didn't go very far, and that is all there was to it."
Juror Oden, who was introduced by appellant, expressly stated that there was no general discussion of the matter and that it was mentioned one time. He also stated that the juror making such mention was immediately reproved.
Another juror testified that one or two jurors stated they would like to have seen appellant take the witness stand. He said: "I went right across and I says, 'That is one thing you can't talk about and you will have to cut it out.' " He testified further that after he admonished the jurors the matter was not referred to again.
Garrett, the foreman of the jury, testified that the matter was mentioned one time. He said: "Will say that someone mentioned *Page 638 it and there might have been three or four all talking at the same time and I asked them not to lose time on that, that we wasn't considering it."
Juror Isbell testified that he heard one mention of the fact that appellant did not testify. He did not say how many of the jurors mentioned such fact but did testify that somebody "told them not to discuss that."
The next juror placed on the stand by appellant declared that he heard no mention made of the matter.
The last two jurors introduced by the appellant heard the matter mentioned one time. They testified that the juror making mention of the same was promptly reproved.
As we view the record, it discloses that several of the jurors testified that there was only one mention made of the appellant's failure to testify, which was promptly reproved; while other jurors testified that two or three members of the jury mentioned such fact and were promptly rebuked. Under the circumstances, the trial judge was warranted in concluding that there was one mention of a casual nature which was promptly rebuked.
The case of Mullins v. State, 61 S.W.2d 829, we think, supports our conclusion that the trial judge did not abuse his discretion in overruling the motion for new trial. We quote from the opinion in that case as follows:
"It is also well settled that when such conduct is made an issue before the trial court, his determination of same will be upheld by us except there appear an abuse of his discretion. In such case the jurors are before the trial court, who is in a great deal better position than we are to pass on their testimony in case of conflict. We have here three jurors, two for the state and one for the defense, who affirm the fact of only one mention of the failure of appellant to testify, and that of a casual nature, and that such mention was promptly rebuked. We have, on the other hand, two jurors affirming that such failure was mentioned two or three times, one of these declaring that at each mention of the matter someone would object to the consideration of same. We are of opinion that the record discloses no abuse of the discretion of the trial court in this regard."
Appellant contends that the court was in error in submitting the case to the jury under Art. 1410, P. C., defining theft. We are unable to agree with this contention. The testimony of the injured party that his money was taken without his consent was uncontroverted. He said: *Page 639
"When I laid my money on the table in hundred dollar bills, fifteen of them, he picked it up and I said, 'Give me my money,' and he started walking down the hall, and I never did give him my permission to take that money either to the bank or anywhere else and it was taken without my consent or permission."
The original opinion is deemed to have properly disposed of the remainder of appellant's complaints.
The motion for rehearing is overruled.
Overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.