ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.We remain of opinion that the questions discussed originally were correctly disposed of. To write further regarding them is not necessary.
Appellant complains because we did not discuss in detail his bills of exception 2, 3, 4, 5 and 10. We have again examined said bills and it appears to us now as it did on original sub*352mission that none of them presents any serious question, and that a discussion of them is unnecessary and would serve no useful purpose.
Appellant strongly urges that his bill of exception number twelve reflects, reversible error. It has reference to appellant’s claim that the jury discussed his failure to testify and was guilty of other misconduct. The evidence heard by the court on the motion for new trial is before us and has been examined. From it the court was justified in concluding that the only reference to appellant not having testified came from the reading of the court’s charge telling them that they could not discuss that fact, and the jurors asserted that-it was not thereafter mentioned.
The other claim of misconduct arose from the following incident. The jury considered and discussed the case until about nine o’clock one night, at which time they ceased deliberating, called in Mr. Bradley, the deputy sheriff who had them in charge, and told him they were ready to retire. After some of them had gone to bed the jurors began telling yarns about some fights they had engaged in previously, and some of them exhibited scars; Mr. Bradley exhibited a wound in his shoulder where he had been shot about forty years before. All of the twelve jurors testified. It was asserted by all of them that at the time the incident happened they were not discussing nor considering the present case, and that what was said or done by anyone in connection with the “spinning of yarns” had no reference to the case. Appellant insists that Art. 671 C. C. P. which precludes any person from conversing with a juror includes the deputy sheriff, and that because the State did not call said officer as a witness on the hearing of the motion for new trial the State did not comply with the rule that:— “Ordinarily, where it is shown that there is a conversation with some unauthorized person, it is incumbent upon the State to not only negative any harmful remarks or transactions by the members of the jury, but it is demanded that the person in question be likewise called to testify.”
The deputy sheriff was not an “unauthorized person.” He was properly present. Of course, his presence would not be permitted at a time when the jury might be discussing the case on trial. It is not to be presumed that when he is properly with the jury that he must act like a deaf and dumb man, and that it would be violative of said statutes for him to engage in a general conversation having no connection with the case *353on trial. The Newton case, 114 Tex. Cr. R. 537, 26 S. W. (2d) 233, we regard as authority for the State’s position that the rule quoted has no application here.
Appellant’s motion for rehearing is overruled.