
    SAMPLES v. STATE.
    (No. 7757.)
    (Court of Criminal Appeals of Texas.
    June 6, 1923.)
    1. Criminal law @=>9251/2(3) — Denying new trial because jurors used fact in deliberations that defendant did not testify held error.
    Where, in a prosecution for theft, the fact that defendant did not testify was used by the jury in their deliberations, and jurors gave testimony to fellow members that defendant bore the reputation of a crook, his character not being made an issue, in denying a new trial there was error.
    2. Criminal law @=»72l(l), 722(2) — Commenting on defendant’s failure to testify and bad reputation held violative of Code.
    ' In a prosecution for theft, commenting on defendant’s failure to testify, and putting before the jury the fact that he bore' a bad reputation and had previously been convicted of crime, was violative of Code Cr. Proc. arts. 790, 837, respectively.
    Appeal from District Court, Wichita County ; P. A. Martin, Judge.
    P. S. Samples was convicted of theft, and he appeals.
    Reversed and remanded.
    Heyser & Hicks, of Witchita Palls, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is theft; punishment fixed at confinement in the penitentiary for a period of two years.

The appellant did not testify in the ease, and this fact was used against him by the jury in its deliberations. Jurors also gave testimony to their fellow members to the effect that appellant bore the reputation of a “crook.” His character was not made an issue upon the trial. His prior conviction for a felony offense was also used against him. This was new matter not given in evidence upon the trial.

The Assistant Attorney. General concedes that the comments upon appellant’s failure to testify were violative of article 790 of the C. C. P., and that, in putting before the jury the new and damaging facts that he bore a bad reputation and had been previously convicted of crime, the provisions of article 837 of the C. C. P., were transgressed. For precedents on the subject, see Vernon’s Tex. Crim. Stat. vol. 2, 1922 Supp. p. 2578; also page 2606.

In denying a new trial, the court was in error.

The judgment is reversed, and the cause remanded. 
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