On Motion for Rehearing
MORRISON, Judge.We have re-examined the statement of facts on motion for new trial and have concluded that we were in error in our original- opinion. We find that the question of the appellant’s failure to testify was discussed several times by the jury during their deliberations and that at one stage thereof the jurors were not in accord among themselves as to whether this question was a proper subject of discussion and that some jurors continued to bring up the matter. Where there is evidence of repeated discussions, we think that the trial court was unwarranted in reaching the conclusion that the appellant’s failure to testify was not taken as a circumstance against him. This is what the statute denounces.
Appellant’s motion for rehearing is granted; the judgment of affirmance is set aside, and the judgment is now reversed and the cause remanded.
On Appellant’s Motion for Rehearing