Adverting to the averment in the motion for new trial charging that the jurors in their retirement discussed the failure of the appellant to testify in his own behalf, the appellant contends that the verified motion is conclusive unless controverted. It is believed that the opinion of this court in Stanley's *Page 399 case, 16 Tex.Crim. App. 393, has been misconstrued. In that case, the facts showed that Stanley sought a continuance for the absence of the witness Shaw. The motion to continue was overruled, and in the motion for new trial the appellant averred under oath that Shaw, if present, would give certain testimony. The trial court refused to consider the motion for new trial because it was not supported by the affidavit ofShaw. On appeal, the court held that the affidavit of the witness was not essential and that the motion for new trial was entitled to consideration; and that the alleged absent testimony was to be weighed under the rules applicable when after a motion for a continuance is denied the matter is again considered on the motion for new trial, that is, the averments in the motion are to be weighed in the light of the evidence adduced on the trial. The application for a continuance was a part of the records. Its consideration on a motion for new trial is upon a different footing from an averment of misconduct of the jury. When the motion is based upon misconduct of the jury, it is merely a pleading containing averments for the proof of which the burden rests upon the accused. Such is the opinion of this court written by Judge Davidson in Lopez v. State, 84 Tex.Crim. Rep.. The views of the court are stated with clarity by Judge Lattimore in the opinion of the court on hearing in the Noble case, 98 Tex. Crim. 466, in which the Stanley case, supra, is discussed and in which the rule is stated thus:
"The truth of the allegations of the motion for new trial, if of matters dehors the record, must be made to appear in some way by what may be characterized as testimony, which may be made by affidavit or oral testimony."
The matter has received some discussion in a number of other cases. Among them is Hughes v. State, 106 Tex.Crim. Rep., in which there are several citations. The case of Lax v. State, 79 S.W. Rep. 578, to which the appellant refers, is not regarded as supporting his contention. In that case the averment in the motion was misconduct of the jury of a material character, and the trial court denied the appellant the facility for bringing the juror who tried the case into court and give testimony in support of the averment of the motion. In the present instance, however, the motion for new trial contains a general averment that certain members of the jury, the names of whom are unknown to the defendant, during their deliberations discussed the fact that the defendant did not testify in his own behalf and considered such failure as a circumstance against him. This fact, supported by the appellant's affidavit alone, *Page 400 did no more than present a pleading upon which he would be privileged to present proof. On the subject, see Vyvial v. State, (opinion on motion for rehearing), 10 S.W. R. 2d 83.
The request for the privilege of filing a second motion for rehearing is denied.
Denied.