Refusal of new trial sought for misconduct of the jury was denied by the trial court, and we upheld his action. This is the only complaint against our opinion in the motion for rehearing.
Upon presentation of the motion for new trial the court heard the testimony of eleven jurors who sat in the case. The issue made was that appellant's failure to testify was discussed in the jury room. We have carefully examined the testimony of each witness. Most of them indicated that at some of the frequent readings of the court's charge while the jury was deliberating, and at the reading of that portion thereof which referred to appellant's failure to testify, it was said by some juror, but no one seemed to know which one, that he wondered why appellant did not testify, that they would have understood his case better. No witness stated facts which rendered at all probable the fact that such failure to testify was taken as a circumstance against appellant. Art. 790 Vernon's C. C. P. says: "The failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall same be alluded to or commented on by counsel in the cause." While expressions capable of a different construction may be found in some of the opinions, the general rule deduced from those cases where the subject has been carefully considered, is that the case will not be reversed for such complaint unless the record makes it reasonably appear that what was said in this regard shows that *Page 521 such failure was taken as a circumstance against the accused. In Mason v. State, 81 S.W. Rep. 718, a juror said: "Why didn't George Mason take the stand in his own behalf?" This fact was sworn to by several, but it was in evidence that another juror said: "Cut that out," and there was no further discussion. This was held no ground for reversal. In Jenkins v. State, 49 Tex. Crim. 457, a juror said: "Why didn't the old man get on the stand?" to which some one replied, "We are not to consider that." This statement appears in the opinion:
"As we understand, the consensus of the testimony showed, that in connection with the reading of the charge with reference to defendant's right to testify, the remark or inquiry was made, why didn't defendant testify? And there was an immediate reply to the effect that that matter was not to be discussed or considered by the jury."
This is substantially what was before the court in the instant case. Appellant cites several cases in his motion, but Glenn v. State, 229 S.W. Rep. 521; Kelly v. State, 252 S.W. Rep. 1065; Hennington v. State, 271 S.W. Rep. 624, and Franks v. State, 272 S.W. Rep. 451, upon careful reading, will be found to support the statement that it must appear that what was said in the jury room was hurtful, or was taken as a circumstance against the accused. The Walling case, 128 S.W. Rep. 624, was reversed for other reasons, and its conclusions in this regard appear out of line. See Smith v. State, 52 Tex. Crim. 344, wherein we said:
"We think the true rule is that where, as in this case, the testimony supports the verdict, and the charge of the court properly submits the case to the jury, that a verdict ought not to be set aside for every incidental and casual mention of a former trial or a former conviction, and that in no case should it be set aside in a case tried according to law where the conviction is supported by the testimony, unless the court may fairly and reasonably see in the light of all the circumstances that such reference and discussion did or might have prejudiced the appellant's case. It is possible that there is some language in some of the decisions not wholly in accord with the views here expressed, but on full consideration this is believed to be the correct rule, and tested by this rule we believe appellant is without just ground of complaint."
This is in accord with our conclusion.
The motion for rehearing will be overruled.
Overruled. *Page 522