Appellant courteously but urgently insists that there was such misconduct on the part of the jury as calls for a reversal. We have carefully reviewed the testimony of each of the ten jurors, and considered the agreement with regard to the testimony of the two who were absent, but find ourselves unable to agree that same shows more than casual reference to the failure of the defendant to testify, and each juror affirms that when reference was made same was checked in each instance and statements made to the effect that this was not to be considered. Some of the jurors insist that no mention was made of it until a verdict of guilty had been agreed upon. None of the jurors would admit making the remark except one who said that after the other jurors had come to a verdict he, in private discussion with another, said if the boy had been charged with other offenses, that to convict him and give him the lowest penalty might reform him. The juror named by this witness as the one with whom he had this private discussion, took the stand in rebuttal and testified that they had already agreed on a verdict of guilty at the time this conversation took place. Matters of this character are peculiarly within the discretion of the trial court, and this court will not overturn the action of the trial court unless it plainly appears that such discretion has been abused. We are not led to the belief that the record before us presents a case calling for a conclusion on our part that such discretion was abused.
The motion for rehearing will be overruled.
Overruled. *Page 628