The only question presented in the motion for rehearing is the alleged misconduct of the jury in discussing appellant's failure to testify.
Appellant insists that the original opinion is incorrect in stating that only one juror was shown to have referred to the fact that appellant did not testify, and that this juror was promptly reproved by other members of the jury. We were in error in our statement that such mention was made by only one juror. Juror Eaton testified that he and another juror stated, in effect, that they would have been glad if the appellant had testified. However, we think the original opinion correctly states that these jurors were promptly reproved. On this point it is observed that the juror Eaton was asked the following question: "When you made that statement did anybody say anything to you about it?" He answered: "I don't remember whether they did or not. It came into my mind that it couldn't be held against him." Juror Dillard, testifying for the appellant, stated that two or three jurors had something to say about the fact that the defendant failed to testify. However, in connection with this statement, he said: "All I remember about it was that one of the men asked the question *Page 6 'I wonder why Mr. Patton did not testify himself' and another said 'I don't know why, but we are not supposed to take that into consideration.' " He also testified that he (Dillard) remarked "It didn't make any difference; we are not supposed to consider that." Juror Corley, testifying for appellant, said that he heard the fact mentioned that appellant did not testify. We quote his language as follows: "I do not recall who it was. It might have been just two or three of us." He testified further that when the remark was made he made the statement that the matter must not be considered.
The State introduced five jurors, all of whom testified that they did not hear any reference made to appellant's failure to testify.
We think the testimony of the jurors placed on the stand by appellant warranted the conclusion of the trial judge that the failure of the appellant to testify was mentioned by two jurors, and that they were promptly rebuked. Under the circumstances, we are of opinion that the trial judge did not abuse his discretion in overruling the motion for a new trial. We quote from Mullins v. State, 61 S.W.2d 829, as follows:
"It is also well settled that when such conduct is made an issue before the trial court, his determination of same will be upheld by us except there appear an abuse of his discretion. In such case the jurors are before the trial court, who is in a great deal better position than we are to pass on their testimony in case of conflict. We have here three jurors, two for the state and one for the defense, who affirm the fact of only one mention of the failure of appellant to testify, and that of a casual nature, and that such mention was promptly rebuked. We have, on the other hand, two jurors affirming that such failure was mentioned two or three times, one of these declaring that at each mention of the matter someone would object to the consideration of same. We are of opinion that the record discloses no abuse of the discretion of the trial court in this regard."
The motion for rehearing is overruled.
Overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 7