
    BOGAN v. STATE.
    (No. 3753.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    1. Criminal Daw <&wkey;954 — Appeal and Error-Motion itor New Trial — Grounds— Questions Raised.
    Where a motion for new trial alleges that the verdict is contrary to the evidence and that the judgment of the court is contrary to the law, the only question raised is the sufficiency of the evidence to sustain the verdict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2341, 2303-2367; Dec. Dig. <§¿¿954.] *.
    2. Criminal Law &wkey;>956 — Trial—Conduct oe Jury — Evidence.
    Evidence held insufficient to show such discussion by the jury of defendant’s failure to testify as to entitle him to a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. <&wkey;> 956.]
    Appeal from District Court, Wharton County ; Samuel J. Styles, Judge.
    Tommie Bogan was convicted of robber}', and he appeals.
    Affirmed.
    H. A. Cline, of Wharton, for appellant C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of robbery, and his punishment assessed at five years’ confinement in the state penitentiary.

There are but three grounds in the motion for a new trial, the first two alleging: (1) Because the verdict is contrary to the evidence; (2) because the judgment of the court is contrary to the law. These grounds only raise the issue of the sufficiency of the evidence to sustain the verdict. We have read it, and think it fully sustains a verdict of guilty.

The third and only other ground alleges that the jury, while considering the case, discussed the failure of defendant to testify on the trial. Under this assignment appellant states the proposition:

“If the jurors did discuss and argue the failure of defendant to testify, defendant was entitled to a new trial, although the jurors may have afterwards testified they were not influenced thereby.”

To this proposition of law we give our assent, but the evidence heard on the motion for a new trial does not sustain the proposition. It is true that the testimony of one of the jurors, W. B. Frazier, would have a tendency to sustain the proposition that the failure of defendant to testify was discussed, and that it did not'influence him, but we cannot say that the trial court should have accepted his testimony, when all the other jurors who testified say that the failure of defendant to testify was not discussed. They show: That a ballot had been taken, and 11 of them (all except Mr. Frazier) voted guilty. That while considering the matter further some juryman remarked, “Why did they not put that man on the stand,” when Mr. Davis, Mr. Gordon,'and Mr. Ewart all said:

“You can’t bring that into the jury room— you cannot discuss it nor consider it. We were charged not to say anything about that, nor consider it.”

That no further mention was made of his failure to testify, or, as one juror expresses it, “we quashed it right there.” Such an incidental reference to the failure of the defendant to testify has always been held not to present reversible error, especially when all the jurors (except Frazier) testify that their.’ attention was called to the fact the court had instructed them not to consider it, and it was not considered in arriving at their verdict. Even Mr. Frazier testifies it had no influence on him. Cooper v. State, 162 S. W. 366, and cases cited.

The judgment is affirmed. 
      otlier cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
     