Appellant was convicted of an assault with intent to murder, and his punishment assessed at two years confinement in the penitentiary. On the trial appellant relied upon insanity and self-defense as defenses. The evidence on the issue of insanity, so far as the number of witnesses is concerned, largely preponderates in favor of appellant; but the jury are the judges of the credibility of the witnesses and the weight to be given their testimony, and, the evidence being sufficient to support their finding, we will not disturb the same.
The last complaint of appellant is the misconduct of the jury, after their retirement, in discussing the failure of appellant to testify. It appears by bill of exceptions that the following are the facts upon which appellant seeks reversal: Upon the trial appellant was not placed upon the stand. A.W. Kerr, one of the jurors, states that in the deliberations of the jury the fact that the defendant failed to go on the stand and testify was discussed by the jury. "I could mention no particular remarks with reference to it, more than some of them. I do not remember the names of the parties, mentioned the matter. It was stated on the trial by a witness that defendant would like to testify, and if he had he would have told the whole thing, and that brought about a discussion in the jury room; and it was discussed pro and con, and *Page 212 some of them suggested that we go back in the courtroom and have defendant to testify. Then it was discussed as to whether the judge would let him testify at that stage of the trial, and we decided he would not. That was all there was about it. It was talked about when we first went out, and talked more or less until the time the verdict was rendered." On the cross-examination of this juror, he stated: "After three speeches had been made in the case, and about the conclusion of the third speech, defendant put a witness on the stand during the argument. It was proven by said witness that defendant had said to the witness that evening, when carrying him to jail, that if they had let him go on the stand, he would have told the whole thing. The evidence was brought out by defendant. Defendant put the witness on the stand." The other jurors in the case testify substantially as above, and in addition stated that the matter was freely and fully discussed by the jury. Appended to the bill of exceptions is this explanation by the judge: "That defendant having put the witness Files on the stand, and proved by him that defendant had said to him that if he (defendant) had been put on the witness stand he could and would have told all about it, etc., the defendant could not complain of the fact that the jury discussed the evidence introduced in the matter stated in this bill and in the statement of facts." By a long line of authorities we have held article 770, Penal Code, is mandatory, and that the jury must not consider the fact of the failure of the defendant to testify as a circumstance against him. Tate v. State,38 Tex. Crim. 261; Hunt v. State, 28 Texas Crim. App., 149; Reed v. State, 29 Texas Crim. App., 449, and many other authorities. An inspection of these cases, however, shows it was a gratuitous use of the fact that defendant failed to testify on the part of the prosecution or some meddlesome juror in their deliberation over the rights of defendant. The facts before us do not show the same state of facts. Here the defendant put the witness on the stand, who testified to the fact that defendant had told him (witness) that he (defendant) could have explained matters under investigation by the jury, if he (defendant) has been placed on the stand. Being a voluntary proof of the fact of his failure to testify by defendant himself, through his counsel, certainly appellant can not complain; for, after proving said fact, it becomes evidence in the trial of the case, and the jury can discuss it as they see fit. In Parker v. State, 39 Texas Criminal Reports, 264, we held that, where the defendant himself brings forward in argument his failure to testify, a reiteration of this fact by the State in the course of its argument will afford no ground for a reversal of the case. So we hold here that, where defendant introduces the fact for the consideration of the jury that he has failed to testify, he can not complain because the State's counsel comments upon the same, nor that the jury, in considering and passing upon his rights, discusses the same in all of its phases. The statute inhibiting the State's counsel or jury from commenting upon or alluding to the fact of defendant's failure to testify, or the jury from considering and *Page 213 discussing the same, in passing upon the rights of the defendant with the evidence adduced upon the trial, is a defensive statute, and not an offensive one. Before a defendant can avail himself of its provisions, the spirit, letter, object, and purpose of the statute must not be violated first by himself, and then seek subsequently to use it as a weapon of defense. We do not think the court erred in refusing a new trial on this ground. We must say here that we deprecate the use of the failure of the defendant to testify. It should not be proven on the trial, and should not be considered by the jury at all. But, as indicated, if appellant or his counsel places the fact in evidence, he can not be heard to take advantage of his own wrong.
No error appearing in the record requiring a reversal, the judgment is affirmed.
Affirmed.