
    F. S. Samples v. The State.
    No. 7757.
    Decided June 6, 1923.
    Theft — Misconduct of Jury.
    Where, upon trial- of theft, the defendant did not testify, and this fact was used against him by the jury in its deliberations, the same was reversible error.
    Appeal from the District Court of Wichita. Tried below before the Honorable P. A. Martin.
    Appeal from a conviction of theft; penalty, two years imprisonment in the penitentiary.
    The opinion states the case.
    
      Heyser & Hicks, for appellant.
    Cited, Wallace v. State, 81 S. W. Rep., 966; Shaw v. State, 123 id., 691; Flores v. State, 124 id., 1111; Willeck v. State, 141 id., 88; Jones v. State, 156 id., 1191.
    
      R. G. Storey, Assistant Attorney General, for the State confessed error,
    and cited: Suddath v. State, 90 Texas Crim. Rep., 401; Gilbert v. State, 85 id., 597; McDougal v. State, 81 id., 179; Cotton v. State, 228 S. W. Rep., 943; Hall v. State, 241 id., 154.
   MORROW, Presiding Judge.

The offense is theft; punishment fixed at confinement in the penitentiary for a period of two years. The appellant did not testify in the case 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 Sup., p. 2578; also p. 2606.

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

The judgment is reversed and the cause remanded.

Reversed and fema/nded.  