x999-2" type="rehearing">

ON REHEARING.

December 21, 1910.

RAMSEY, Judge.

In this case motion for rehearing has been filed questioning the correctness of our opinion on substantially all the matters involved in the appeal.

There is only one matter that we desire to notice and that relates to the ground of the motion for new trial setting up misconduct of *610 the jury. As part of the motion for new trial appellant filed a sworn motion to the effect in substance that there had been misconduct on the part of the jury in that after receiving the charge of the court and after retiring to consider of their verdict that they discussed the failure of appellant to take the witness stand to testify in his own behalf. Attached to this motion is the affidavit of one of the jurors who says, in substance, that after the jury had received the charge of the court and retired to consider of their verdict, and before they had arrived at an agreement it was mentioned two or three times— probably oftener — that appellant had failed to testify in his own behalf, and that it was also remarked by some of the jurors at or about this time and before the jury had arrived at a verdict that if the defendant was an innocent man, why did he not go upon the stand and show where he was. The affidavit also states that this, however, did not have any effect on the jurors’ verdict and that it was also mentioned at the time that “we could not consider this matter for any purpose” and that it was not considered by him. This matter was the subject of review in the trial court, and his action, as well as the evidence in relation thereto, was sought to be preserved in a bill of exceptions. In the bill, which is complete in itself, and which does not include the evidence taken in support of same, the court makes the following explanation: “The testimony of the jurors show that the reference to defendant not testifjdng was a mere casual remark unheard by some of the jurors, and considered by none of them; that those who heard the remark promptly suppressed it; that none of the jurors considered the fact that defendant did not testify as to any evidence of his guilt; that no further reference to the matter was made than the casual remark mentioned. I therefore conclude no injury or error is shown; defendant received the lowest penalty.” Then follows immediately what purports to be the testimony introduced in support of the motion. This testimony was filed after the adjournment of the term of court at which appellant was convicted and can not therefore be considered by us. In deciding the matter, therefore, we must do so with reference to the bill of exceptions preserved to the action of the court in ruling on this matter. This shows affirmatively and positively that evidence had been heard on the motion, but the record does not show in such a way that we can consider same what this evidence was. When considered, in view of the statements of the trial court, it must seem evident that, as presented, it furnishes no ground for reversal. Fox v. State, 53 Texas Crim. Rep., 150; Gabrera v. State, 56 Texas Crim. Rep., 141.

It is therefore ordered that the motion for rehearing be and the same is hereby overruled.

Overruled.

McCord, Judge, absent.

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