Appellant calls attention to a matter not discussed in our original opinion. He made affidavit to his motion for new trial in which he averred that the jury considered as a circumstance against him the fact that he did not testify as a witness. The affidavit of no juror or other person who could have knowledge of the fact, if it occurred, was attached to the motion. If any evidence was introduced or tendered upon the hearing to support the allegation it is not brought forward. It is apparent that the averment could not have been based on appellant's own knowledge but is bound to be purely a hearsay matter with him. This seems to bring the case within the rule announced in Noble v. State, 98 Tex.Crim. Rep., 266 S.W. 412, and in Hughes v. State (No. 10766, opinion on rehearing April 27, 1927, not yet officially reported). Furthermore, it being recited in the judgment overruling the motion that evidence was heard, it will be presumed that the evidence justified the court's action where the evidence so heard is not brought before us. Cade v. State, 96 Tex.Crim. Rep., 258 S.W. 484; Hicks v. State, 97 Tex.Crim. Rep., 261 S.W. 579; Crouchett v. State,99 Tex. Crim. 572, 271 S.W. 99; Wilson v. State, 99 Tex. Crim. 561, 271 S.W. 104; Armstrong v. State, 102 Tex. Crim. 496, 278 S.W. 435.
The motion for rehearing is overruled.
Overruled. *Page 125