Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $250, and six months confinement in the county jail.
In the motion for new trial appellant complains of the misconduct of the jury. Attached to the motion is the ex parte affidavit of appellant's counsel setting up said misconduct, which was an allusion by one *Page 348 of the jurors, after they retired to consider of their verdict, to the failure of the defendant to testify. Prior to passing upon this motion the trial court had all of the jurors brought in, and they testified. Some of them stated that they heard somebody say, "why did the defendant not testify?" The substance of the testimony of the jurors is, that there was nothing further said about it, some stating that they did not even hear the remark. In Mason v. State, 10 Texas Ct. Rep., 900, we held that the mere mention in the jury room of the failure of the defendant to testify, when this is immediately suppressed is not ground for reversal. In that case one of the jurors remarked, "why did not the defendant take the stand," and another replied, "cut that out." Others testified they did not hear the remark. We accordingly hold that the mere allusion by one of the jurors during their deliberation to the failure of the defendant to testify, is not per se cause for reversal. The record before us shows that it could not nor did it influence the action of the jury in any respect.
Appellant insists that the evidence is not sufficient to support the verdict of the jury. We think it is amply sufficient. The judgment is affirmed.
Affirmed.
[Motion for rehearing refused without written opinion. — Reporter.]