ON MOTION FOR REHEARING.
HAWKINS, Judge.Appellant urges that we reached a wrong conclusion regarding his complaint that the jury took as a circumstance against him his failure to testify. We have again examined the evidence heard upon the issue. It appears from some of the witnesses that all the jury at first agreed upon the question of appellant’s guilt, but that later some of them — perhaps three — expressed doubt about it. At any rate, the mention of appellant’s failure to testify came up during the consideration of the case. The facts demonstrate the wisdom of resting a finding thereon within the discretion of the trial court unless it is shown from the record that his discretion has been abused. The evidence is in conflict as to whether the matter of appellant not testifying was mentioned more than once, whether it was a casual allusion, and was then promptly suppressed. We must rest .our decision on the point that no abuse of the trial judge’s discretion is shown in determining the issue upon conflicting testimony in favor of the state.
We think there is no merit in appellant’s contention that there was no such possession or asportation of the car as would be necessary to show the completed offense of theft.
The motion for rehearing is overruled.
Overruled.