
    HARRELL v. STATE.
    No. 14039.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Rehearing Granted Oct. 7, 1931.
    De Witt Bowmer, of Temple, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is transporting liquor; punishment, one year in the penitentiary.

The sheriff and deputy testified that they observed appellant in a public street in possession oí intoxicating liquor under circumstances winch justified his arrest under article 212, O. 0. P., authorizing an officer to arrest without a warrant one who commits a felony in the presence of the officer.

The appellant did not testify. His wife testified that appellant’s health had been bad for the last three or four years, and that he drank whisky just before breakfast for ah .appetizer, as it appeared to give him an appetite and caused him to eat more, and that he had been following that habit for the last two or three years.

The record contains two bills of exception. Bill No. 1 sets out in full appellant’s exceptions to the court’s charge: (1) Because the court charged the jury that it was an offense punishable by confinement in the penitentiary for one to five years for any person to transport spirituous liquor capable of producing intoxication, and ignored the appellant’s defense that said whisky was being transported for medicinal purposes; (2) because the court charged the jury that whisky is an intoxicating liquor; (3) because the •charge does not define the word “whisky,” the evidence having raised the issue as to whether the liquor in controversy was whisky or not; (4) an objection to the charge as a whole; (5) an objection to paragraph four of the court’s charge because it wholly ignored appellant’s defense that he was transporting the liquor in question for medicinal purposes, and authorized the jury to convict the appellant, even though the jurors helieved that he was transporting same for medicinal purposes.

There was no contradiction of the ■fact that the liquor the officers found on the -appellant, as well as that which he threw •down on the street, was whisky. The court in his charge to the jury, in substance, told the jury that they would not be authorized lo convict appellant unless they believed that it was intoxicating liquor, and that, if they liad a reasonable doubt as to whether the liquor was whisky, they would acquit the .appellant. The court also defined the words “intoxicating liquor.” Under the law, the .judge may assume that whisky is intoxicating. Aston v. State (Tex. Cr. App.) 49 S. W. 385; Maddox v. State (Tex. Cr. App.) 55 S. W. 832; Hambright v. State, 60 Tex. Cr. R. 253, 131 S. W. 1123; Mayo v. State, 62 Tex. C. R. 110, 136 S. W. 790. The court also • charged the jury that if they found and believed or had a reasonable doubt that appellant was transporting said liquor, if he was transporting it, to drink to stimulate his appetite, or for any other medicinal purposes, -.then they must acquit him, and say by their •verdict, not guilty. Some objection is also ■made to the charge as to the way and manner the court presented the affirmative defense of medicinal purposes. Taking the charge as a whole, every right and defense that appellant was entitled to under the evidence was accorded him, and we cannot see where any injustice or injury to appellant was caused by the manner in which his defense was submitted to the jury.

By bill of exception No. 2 the appellant claims that he should have been granted a new trial because of the misconduct of the jury. He contends that the jury was guilty of misconduct, in that they received other and additional testimony during their deliberations which was material evidence and prejudicial to the appellant and injured him and caused his conviction, and because the jury commented upon the failure of the appellant to testify on the trial of the case. All of the jurors testified upon the hearing of the motion for new trial. We find no evidence to show that the jury received any other or additional testimony during their deliberations. Upon the issue that the jury commented upon the failure of the appellant to testify as a witness in this case, we have carefully considered the testimony of all twelve of said jurors. No one of said jurors admits having referred to the failure of the appellant to testify. Eight of them state that they never heard the failure of the appellant to testify discussed, and those who claimed to have heard some juror mention appellant’s failure to testify all differ as to what was said, and could not give the name of the juror who made the remark. The foreman of the jury testified that he heard reference made to the failure of appellant to testify. “It was mentioned. I don’t know just how it was mentioned. I reached over and took the charge and read it and after that defendant’s failure to testify was not mentioned any more,” This evidence on the part of the foreman is not contradicted. There does not seem to have been any discussion of same, and the matter went no further than being merely mentioned, as heretofore stated. The appellant received the minimum punishment for the offense for which he was tried. This court has held that a mere reference to the fact that the accused failed to testify by a juror accompanied by no discussion of it in their retirement is-not in every case a ground for reversal. Leslie v. State (Tex. Cr. App.) 49 S. W. 73; Mason v. State (Tex. Cr. App.) 81 S. W. 718; Hammonds v. State, 114 Tex. Cr. R. 394, 23 S.W.(2d) 372; Vinson v. State, 96 Tex. Cr. R. 307, 257 S. W. 905; Dyer v. State, 96 Tex. Cr. R. 301, 257 S. W. 902. We do not believe under the interpretation of article 710, Vernon’s C. C. P., given by this court in the cases mentioned, that the mere mention of the failure of appellant to testify in his own behalf, as shown in this case, constitutes such a transgression of the statute as would call for a reversal of the case.

No reversible error appearing in tbe record, tbe judgment is affirmed.

PER CURIAM.

Tbe foregoing opinion of tbe Commission of Appeals bas been examined by tbe judges of tbe Court of Criminal Appeals, and approved by tbe court.

On Motion for Rebearing.

MORROW, P. J.

There seems to bave been no conflict of evidence or contradiction of tbe fact that members of tbe jury, during their deliberation, made comments upon tbe defendant’s failure to testify and explain bis reason for transporting the whisky found in bis possession. To illustrate, tbe testimony of juror Smith is as follows: “I did bear mention of tbe failure of tbe defendant to testify while ■the jury was considering its verdict. I do not remember which juror mentioned it. * * * Some one made tbe statement that the defendant didn’t take tbe stand and was saying that be bad tbe privilege not to do so. * ⅞ * The reference' to tbe failure of tbe defendant to testify was made between tbe first and fourth ballots and was made before I voted for guilty. I tried to decide tbe case according to tbe law and evidence, but tbe argument that tbe defendant did not explain or testify bad some weight with me to vote for ’ guilty. * * * There was some talk about him not doing so — about him not using it for medicine and not taking tbe stand.”

Tbe testimony of juror Sherrod is as follows: “During tbe time that we were considering the case there was a good bit of discussion. * * * Some argument was made by the jurors that if tbe defendant bad not bad the whisky, be would bave testified. I do not know which one of tbe jurors made that argument. * ⅛ ⅜ There was no discussion — just beard the statement. That was all I beard about it — something was said about it.”

Juror Hartrick gave testimony as follows: “I did bear reference made to the defendant’s failure to testify. .It was mentioned, I don’t know just bow it was mentioned. I reached over and took the charge and read it. I do not know who said it — all were talking at once. I looked at tbe charge and read tbe charge and after that bis failure to testify was not mentioned any more. * * * I only beard them talk about bis failure to testify one time. I do not know bow many were in that discussion. There were three or four talking at once. * * * After tbe discussion I picked the court’s charge up and read it over down to tbe place that said tbe defendant didn’t have to testify before I called the jury’s attention to that part of tbe charge. I did not read tbe whole charge out loud.”

. Tbe testimony of juror Carver is as follows: “Tbe jury was not always together. At times there would be two or three in one room and part of the jury in another room. All of tbe jurors could not bear all that was said during such times. ⅜ ⅜ * Mr. Hart-rick read the court’s charge. I don’t remember bearing him read that portion of tbe charge that discusses tbe failure of tbe defendant to testify.”

That of juror Weaver is as follows: “Some one started to say something about deferid-ant not explaining why be bad tbe whisky, and what be was going to do with it. I do not know all of tbe jurors, and we were sometimes separated. I did not bear all that was said.”

In view of tbe statute, article 710, C. C. P. 1925, declaring that the failure of any defendant to testify shall not be taken as a circumstance against him, nor shall tbe same be alluded to or commented upon by counsel in tbe cause, and article 753, subd. 8, C. C. P., relating to misconduct of tbe jury, and the' interpretation and tbe application of the statutes mentioned by this court, we are constrained to regard tbe evidence in tbe present instance as going much beyond tbe bare allusion to tbe failure of tbe accused to testify in bis own behalf. Manifestly, tbe decisions are too numerous to justify any general discussion. Tbe following, however, are regarded in point: Clark v. State, 76 Tex. Cr. R. 645, 177 S. W. 84; Stone v. State, 79 Tex. Cr. R. 219, 184 S. W. 193; Boozer v. State, 82 Tex. Cr. R. 72, 198 S. W. 295; Roberts v. State, 85 Tex. Cr. R. 196, 211 S. W. 219; Walling v. State, 59 Tex. Cr. R. 279, 128 S. W. 624; Hammonds v. State, 106 Tex. Cr. R. 122, 290 S. W. 1096; Laake v. State, 108 Tex. Cr. R. 206, 299 S. W. 643.

Eor tbe reasons stated, tbe motion for rehearing should be granted, the order of af-firmance set aside, tbe judgment reversed, and tbe cause remanded.  