In an unusually well prepared and able motion for rehearing, — and upon a review of many decisions of this court, — appellant insists that our opinion of affirmance was wrong and against the weight of authority in this State.
We have carefully examined the cases cited and others, in the light of the motion, but are not able to agree with appellant. We do not find that condition of conflict on the question of the proper disposition of a complaint of misconduct of the jury based on the use of appellant's failure to testify, — which appellant asserts.
The statutory statement of Art. 710, C. C. P. is that the failure of the defendant to testify shall not be taken as a circumstance against him, nor be alluded to or commented on by counsel in the cause. Clearly the law of any case must rest upon its facts as evidenced by the record. *Page 188
Turning to appellant's statement of facts upon his motion for new trial, we note that eleven of the jurors who sat in the case testified on the hearing of said motion. Some of them swore they heard no mention of defendant's failure to testify. Testimony of the others amounts to a declaration that all they heard was a mere mention, a bare allusion, and an analysis of the entire testimony leads us to conclude that it was based largely, if not entirely, upon the statement made by juror Gooch, who testified that after retiring he remarked to another juror that he wondered why the defendant did not testify. Gooch said the man addressed replied that the defendant did not have to testify unless he wanted to, and that this ended the matter. He was substantially supported by the other jurors who heard the matter mentioned.
We are referred to no case where there has been a reversal upon such facts. We have examined Buessing v. State,63 S.W. 318; Mizell v. State, 197 S.W. 300; Walling v. State,128 S.W. 625; Lout v. State, 56 S.W.2d 454; Boozer v. State,198 S.W. 295; Rees v. State, 278 S.W. 451; Tyler v. State,39 S.W.2d 897, and the other cases cited by appellant, as well as others. In several of said cases the appeal was disposed of and the case reversed for other errors than the one referred to. Appellant seems chiefly to rely upon the Rees and Tyler cases, supra. The Rees case was affirmed, and the only part of the opinion stressed by appellant is that in which we said that misconduct of a juror having been established, the presumption of injury is not to be rebutted solely upon testimony of the juror that he was not influenced. We find nothing in our opinion of affirmance in the instant case indicating that we here held differently.
In the Tyler case, supra, it is made to appear that when the matter of the failure of the accused to testify was broached in the jury's retirement, one juror said that it was not permissible to discuss that; the foreman of the jury replied that the judge had not instructed them not to discuss it. "x x x This matter was in open discussion there." Another juror swore on the hearing of the motion for new trial that from what was said some of them considered that the accused was afraid to take the stand. Another juror swore that he heard it said in the jury room "If he wasn't guilty, why didn't he go on the stand and say so." It seemed to us when we wrote in the Tyler case, — and now, — that there could hardly be a plainer violation of the statutory forbiddance against taking the failure of the accused to testify as a circumstance against *Page 189 him, than in that case; but we find no such facts in the case before us as there appear.
As stated, we have carefully reviewed each authority cited by appellant's able counsel, but feel constrained to adhere to our judgment of affirmance.
The motion for rehearing is overruled.
Overruled.