Appellant calls attention to his complaint that the jury discussed his failure to testify. The evidence developed on the hearing of the motion for new trial was brought forward by statement of facts and not by bill of exception, and in some way the point was overlooked.
We have examined the evidence taken from the jurors regarding the matter and think the trial judge properly ruled against appellant on the point. It seems that one of the jurors said he wondered why appellant did not testify, and the foreman of the jury remarked that this was a matter they could not consider. The trial court was justified in concluding that it was not considered or discussed, but was barely an allusion to the failure of appellant to testify. See cases collated in note 40, under article 710, Vernon's Tex. C. C. P., vol. 2, among them being Bogan v. State, 78 Tex.Crim. Rep., 180 S.W. 247; Cooper v. State, *Page 70 72 Tex. Crim. 266, 162 S.W. 364; Dyer v. State,96 Tex. Crim. 301, 257 S.W. 902.
We deem it unnecessary to again discuss the matters which were disposed of in the original opinion.
The motion for rehearing is overruled.
Overruled.