MOTION FOR REHEARING
DICE, Commissioner.Appellant strenuously insists that we were in error in holding that the trial court did not abuse his discretion in refusing to grant a new trial because of alleged jury misconduct in discussing his failure to testify. It is appellant’s contention that since nine jurors stated that they did discuss his failure to testify and only one juror denied that such discussion was had, *215the trial court’s finding was so against the weight of the testimony as to manifest an abuse of discretion.
Scrivnor v. State, 121 Tex.Cr.R. 565, 50 S.W.2d 329, and Keith v. State, 121 Tex.Cr.R. 508, 51 S.W.2d 603, among other authorities, are relied upon by appellant in support of his contention.
In Scrivnor v. State, supra, this court— in passing upon the trial court’s action in refusing to grant a new trial, said: “When there is direct conflict of evidence in such matters, the decision is for the trial court, and we uphold his findings unless same appear so against the weight of the testimony as to manifest an abuse of his discretion.” The court then upheld the trial court’s action in refusing to grant a new trial under conflicting testimony of the jurors, who stood six to five on the issue.
In Keith v. State, supra, the trial court’s action in refusing a new trial was not upheld where it was shown that the jury did refer to or discuss the accused’s failure to testify and the question was whether such was merely a casual reference to his failure to testify.
Day v. State, 120 Tex.Cr.R. 17, 48 S.W.2d 266, also cited by appellant, where the trial court’s action in refusing a new trial was upheld on appeal, states the rule as follows:
“In cases where, as in the present instance, the evidence heard on the motion for new trial is conflicting as to the existence of the fact or circumstance upon which the claim of misconduct of the jury is founded, the decision of the trial judge is conclusive upon this court unless from the record it is apparent that the trial judge was clearly wrong. Such is the rule that has prevailed since the beginning of our jurisprudence. Obviously, there is no other guide when the matter comes before the appellate court. The finding of the judge on conflicting evidence is analogous to the verdict of the jury upon the testimony. In each instance the result is binding on the court unless its unsoundness is demonstrated by the record.”
In the present case there was a direct conflict in the testimony as to whether the jury did discuss appellant’s failure to testify. Although nine jurors stated that there was such a discussion and only one denied that it occurred, we adhere to our decision upholding the trial court’s action in refusing to grant a new trial. Any holding to the contrary would take away from the trial judge the right to believe one of the jurors as against the testimony of nine of the other jurors and, in effect, would destroy his discretion in the matter. This we cannot do.
The motion for rehearing is overruled.
Opinion approved by the court.