ON MOTION FOR REHEARING.
HAWKINS, Judge.— Appellant insists that in treating his request to withdraw his announcement and continue the case as an application for a second continuance we were in error, asserting that when such request is predicated on article 551, C. C. P., which under certain circumstances allows continuance after trial has begun and that such request is not controlled by the same provisions of the statute as govern when the application for continuance is made in advance of the trial. It is certainly true that contingencies may arise after trial has begun bringing into operation article 551 where the ordinary statutory requirements regarding continuance would not be applicable. It is equally true that where the continuance is sought because of the absence of a witness where, for instance, such absence has been occasioned by sickness since the trial commenced, it is incumbent on accused to put the trial court in possession of information as to what the absent witness would testify, in order that the court may exercise his discretion in determining whether the evidence is material. This is very definitely settled in Davis v. State, 60 Texas Crim. Rep., 620, 132 S. W., 932; Williams v. State, 48 Texas Crim. Rep., 325, 87 S. W., 1155; Marta v. State, 81 Texas Crim. Rep., 135, 193 S. W., 323; Hilly v. State, 105 Texas Crim. Rep., 436, 289 S. W., 61. As was said in Hilly v. State (supra), it surely was not the purpose of article 551, C. C. P., to put the accused in a better position than he would have been in had he known before the trial started that the witness was absent and had sought a continuance to secure the testimony. There is copied in our original opinion the language employed by appellant in his application for continuance purporting to advise the court what the expected evidence of his wife would be. It says her testimony “is very material” to appellant. That is a pure conclusion. It also says that she was the only person present at the time of the homicide except appellant and deceased, and that she “heard a conversation between them.” Nowhere does it state what she would testify such conversation was. It is further stated that the wife was present when the trouble started and that “deceased * * * first drew his pistol and fired it while defendant and deceased were fighting and scuffling over deceased’s pistol.” It will be observed that nowhere is it averred that the wife would testify that such were the facts. If appellant’s wife had been absent at the beginning of *411the trial, and he had sought a continuance based thereon, and had presented an application no more specific as to what evidence he expected from his wife, the court would have been justified in denying the continuance. The court having properly denied the motion to withdraw announcement and continue because of a defective application therefor, the ruling forms no basis for complaint in the motion for new trial on account of the court’s action in the first instance. See Brannan v. State, 108 Texas Crim. Rep., 418, 1 S. W. (2d) 279, and cases therein cited.
In our original opinion we adverted to some conflicts between the statement of the absent witness as contained in her affidavit attached to the motion for new trial and the statement made by her in examining court. One conflict which we did not mention is regarded as quite significant. In the affidavit it is stated that as she went through the room where the killing occurred she saw a pistol, and was under the impression it was in the hands of deceased. In her statement at the examining trial she specifically stated that “she did not see any gun on either of the men or anywhere else there at any other time.” In qualifying the bill complaining of the refusal of the continuance the court calls attention to the “direct” conflict in the statements referred to. In determining whether a different result might be reached upon another trial in the event the absent witness had testified as claimed in her affidavit, the court was fully warranted in taking cognizance of the conflict mentioned and cannot under the circumstances be held guilty of any abuse of discretion in overruling the motion for new trial. Wiley v. State, 117 Texas Crim. Rep., 449, 36 S. W. (2d) 495; Barfield v. State, 118 Texas Crim. Rep., 394, 43 S. W. (2d) 106; Fox v. State, 119 Texas Crim. Rep., 552, 43 S. W. (2d) 951.
It is urged that we were not authorized in saying in our original opinion that the trial judge was “warranted in reaching the conclusion that the alleged misconduct of the jury did not occur.” We have again examined the testimony of the seven jurors who gave evidence regarding that matter on the hearing of the motion for new trial. It is clear that the deliberations of the jury were in a small room and that no discussion of the case occurred at any other place than in said room. Five of the jurors stated that they heard no mention made of a former conviction of appellant nor of the penalty assessed. One of the jurors, Mr. Cooper, swore positively that it was not discussed at all. Another juror, Mr. Duhon, testified that only the evidence produced on the trial was discussed. There then appears a question to said juror, and his answer, as follows: “Q. I asked you with respect to the fact that he had been convicted before and got a sentence of 99 years ? A. That was not discussed at all. At least, I did not hear that discussed at all.” Two jurors testified that the former conviction and punishment was mentioned. With the record in the condition indicated there seems to have been an issue *412regarding. the matter. , In our judgment this justified the statement, in our opinion of which appellant complains.
We now advert to the: samé question from a different angle, and one nbt ■ considered originally. -Appellant claimed a new' trial under subdivision 7 of -article 753, C. C. P., which makes it ground for'a new trial “where the jury "after having retired to deliberate upon a case have received other testimony.” In connection with the statute just mentioned, is article 759, C. C. P., which providés: “The effect of a new'trial is to place the cause in the same position in which it was before any trial had taken'place. The former conviction shall be regarded- as no presumption of guilt, nor shall it be alluded to in the argument.” -It has1 been held that the article quoted extends to any argument or'discussion of a former conviction by the jury in the jury room. Horn v. State, 50 Texas Crim. Rep., 404, 97 S. W., 822; Moore v. State, 52 Texas Crim. Rep., 336, 107 S.'W., 540. It has also been held that where there was a mere casual allusion to a former conviction and no discussion of the-same had it will not afford cause for reversal. Moore (supra); Baines v. State, 43 Texas Crim. Rep., 490, 66 S. W., 847, 851; Gaines v. State (Texas Crim. App.), 77 S. W., 10; Henderson v. State, 104 Texas Crim. Rep., 495, 283 S. W., 497; Wood v. State, 86 Texas Crim. Rep., 550, 217 S. W., 1037. From the' Baines case we quote: “While strictly construed, the statute would appear to prohibit the barest allusion to a former conviction, yet we do not take it that this would constitute reversible error. Campbell v. State, 35 Texas Crim. Rep., 160, 32 S. W., 774; Brantly v. State, 42 Texas Crim. Rep., 293, 59 S. W., 892. Evidently the intent and purpose of the statute was to guard appellant against the use by the state of his former conviction as an evidence of his guilt. * * *”
Assuming that the two jurors who said the former conviction and penalty were mentioned gave a correct version of the matter, then under what circumstances did it occur? It is quite clear from the record that there was no discussion of the incident but that it was merely alluded to. Every juror who was asked about the matter on the hearing for new trial said he knew about the former conviction and penalty before being taken on the jury. So far as this record reveals every juror who sat in this trial may have known of it beforehand. If any inquiry was made of them on their voir dire examination regarding such knowledge it is not made to appear from the record. If it had been ascertained that they did know about it an inquiry as to whether such fact would influence them as jurors in the present trial would have been proper. The only two jurors who said such former conviction was mentioned asserted that such fact had no influence on them in reaching their verdict, or in assessing the penalty agreed on. Usually such claims of jurors are not given serious consideration. From the examination of witnesses and the repro*413duction of certain evidence on this trial the fact of a former trial became known to the jury. Conceding that an allusion was made in the jury room to the former conviction and penalty, the fact that there was no discussion of .it leads us to conclude that under the authorities cited and referred to in those opinions the trial court should be sustained in overruling the motion for new trial based upon the claim of misconduct of the jury.
In the motion for rehearing appellant complains of the reproduction of the testimony of the witness Carr. We have not been able to find in the record any bill of exception bringing such complaint forward.
The motion for rehearing is overruled.
Overruled.