Appellant insists in his motion for rehearing that we either failed to get the point of his attack on the charge, or else had declined to follow the precedents cited in his original brief. The court's charge on accomplice testimony is quoted in our former opinion, and it is manifest that the court was wrong in telling the jury that they could not convict on the accomplice testimony "unless it connects the defendant with the offense charged." We so held in our former opinion.
All of the cases cited by appellant in his brief on this point have been again examined in the light of the motion. Baggett v. State, 144 S.W. 1136; Grant v. State,132 S.W. 350; Fruger v. State, 120 S.W. 197; Sealey v. State, 47 S.W.2d 295; Oates v. State, 103 S.W. 859, and Alsup v. State,49 S.W.2d 749, cited in said brief, are all cases in which the trial courts in their charges told the jury that they could not convict on the accomplice testimony unless it "tended to connect," or "tended to show," the guilt of the accused. Clearly these cases are not in point, — the charge here telling the jury that they could not convict on the accomplice testimony unless it connected the defendant, etc. Ehrlich v. State, 281 S.W. 548, and Burkhart v. State, 16 S.W.2d 1090, also cited, have no sort of application, and must have been cited under misapprehension. Abbott v. State, 94 Tex. Crim. 31, and Anderson v. State, 95 Tex.Crim. Rep., also cited, are applicable, but hold *Page 570 contrary to appellant's contention, and in line with what we said on this point in our former opinion. In other words, the testimony of the accomplices referred to in the court's charge, if believed by the jury, appears in the case before us not only to connect appellant with the offense charged, but also to have made out a complete case of guilt, in which case, as said in the Abbott and Anderson cases, supra, and also in Watson v. State, 90 Tex.Crim. Rep., and Walker v. State,94 Tex. Crim. 653, the error in the charge would not be ground for reversal.
On the other point raised in appellant's motion, we note that when the jury retired and voted the first time they stood eleven to one for conviction. All twelve of the jurors testified on the hearing of the motion for new trial. Each of the eleven who voted guilty on the first ballot, testified that he made no mention in the jury room of the failure of appellant to testify. The twelfth juror, — who voted not guilty, — affirmed that he heard some one in the jury room refer to appellant's failure to testify, but could not say who it was. He admitted that he himself did make such reference while in the jury room, but claimed that he made it casually. We think this clearly brings this case within the general rule that this court must declare in favor of a proper exercise of the discretion of the trial court upon such hearing when there is a conflict in the testimony. The great weight of the testimony heard by the court is in line with the conclusion of the trial court that no improper reference was made in the jury room, and in line with our holding in our former opinion.
The motion for rehearing will be overruled.
Overruled.