This case is before us on appellant's motion for rehearing.
Appellant in his motion for rehearing has properly presented to this court a supplemental transcript showing that the term of court was actually extended to include the 5th day of April, 1924, and it is proper to consider appellant's complaint based on the alleged misconduct of the jury.
Appellant in his motion for new trial alleges that during their deliberations the jury received and heard other testimony than that adduced upon the trial of the case, in that while a number of jurors were voting not guilty, other jurors who believed this defendant guilty, referred to and stated as a fact that this defendant had been previously convicted, and that after said jurors had all agreed to a verdict of guilty and while they were deliberating on the punishment to be assessed, several of said jurors voted for confinement for a term of two years while others voted for more severe punishment; that one or more of the jurors favoring the higher penalty stated as a fact that this defendant had already served more than two years imprisonment for which he would get credit on any term of imprisonment assessed on the present trial and that if this jury assessed a less term than five year and the time already served were deducted, the punishment would be wholly inadequate.
On the hearing of this motion, ten of the jurors testified: We have carefully considered this testimony and cannot agree with appellant's contention that the court erred in overruling his motion for new trial. One of the jurors testified that it was mentioned in the jury room, that the appellant had been in jail for two years more or less and that any sentence that he got, would be taken off his sentence. The juror further testified that we dismissed that idea entirely and gave him a sentence of five years, not being sure that he would get credit or would not get credit for the time he *Page 367 had served in jail. The juror further testified that the jury didn't discuss or didn't talk over that part of the consideration at all, or didn't pay any attention to it, and that it was a mere casual remark. The other jurors testified to practically the same matter.
In each instance, the testimony shows that the matter was merely mentioned and each juror testifying negatives the idea that there was any general discussion of the matter or that it in anywise influenced the verdict of any juror.
It has been held by this court in the case of Jenkins v. State, 49 Tex.Crim. Rep., 93 S.W. 726, that the mere mention in the jury room of defendant's failure to testify, if promptly rebuked and the jurors informed that it is not to be considered, is no ground for reversal. It has also been held that a bare allusion to defendant's failure to testify in the jury room which is immediately suppressed will not cause the judgment of conviction to be set aside. See Branch's P. C., page 293, for authorities supporting this proposition. On the question of the jury's reference to a former conviction it has been held that when the testimony supports the verdict and the charge properly rebuts the case, a verdict ought not to be set aside for a casual mention of a former conviction and that in no case should it be set aside where the case has been tried according to law unless such reference or discussion in the opinion of the court did or might have prejudiced appellant's case. Smith v. State, 52 Tex.Crim. Rep..
Under the reasoning in those cases, we are led to the conclusion that a mere mention of a matter in the jury room such as that raised by appellant in this case does not constitute reversible error. It has been uniformly held by this court that matters of this character are largely within the discretion of the trial court; and when he hears the evidence and when the evidence is more or less conflicting as to what occurred and in the absence of an abuse of that discretion his judgment therein will not be disturbed.
Applying this rule to the matter before us, we are of the opinion that no such abuse of the trial court's discretion is shown as would warrant us in reversing the case. It is our opinion that the motion for rehearing should be overruled.
Overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and the conclusions announced are approved by the Court. *Page 368