
    VINSON v. STATE.
    (No. 8128.)
    (Court of Criminal Appeals of Texas.
    Jan. 9, 1924.)
    Criminal law <&wkey;857(3) — Reference in jury rdom to defendant’s failure to testify held not ground for reversal.
    Reference in the jury room to defendant’s failure to testify held not «uch a transgression of Vernon’s Ann. Code Cr. Proc. 1916, art. 790, as to require reversal of his conviction, where the foreman immediately informed th’e jurors that they must not refer to or consider such failure and- that the court had so instructed them in his charge.
    Appeal from District Court, Angelina -County; D. D. Guinn, Judge.
    Cal Vinson was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    Tom Garrard, State’s Atty., of Midland, and Grover O. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMORE, J.

Appellant was convicted in the district conrt of Angelina county of selling intoxicating liquor, and his punishment fixed at one year in the penitentiary.

There is no statement of facts in the record, and same presents but one bill of exceptions, which is to the action of the learned trial judge in overruling appellant’s motion for new trial based on alleged misconduct of the jury. It was set up in said motion that the jury commented on the failure of the defendant to testify as a witness in the case. All 12 of the jurors who tried the ease were brought before the court upon the hearing of this motion and gave testimony. We have carefully considered their evidence. No one of said witnesses admits having referred to the failure of the defendant to testify, but there is testimony from some of the jurors that the fact was referred to. Most of the witnesses agree that, immediately upon such.reference, the foreman of the jury informed them that they must not refer to or consider the fact of the failure of the defendant to testify and told them that the court had instructed them in his charge not to do so. In subdivision 40 under article 790, Vernon’s O. O. P., many authorities are cited and reviewed evidencing this court’s decision of similar questions to that now before us. In Probest v. State, 60 Tex. Cr. R. 608, 13S S. W. 263; Powers v. State, 69 Tex. Cr. R. 494, 154 S. W. 1020; Espinoza v. State, 73 Tex. Cr. R. 237, 165 S. W. 208; Coffman v. State, 73 Tex. Cr. R, 295, 165 S. W. 939, and Howard v. State, 76 Tex. Cr. R. 297, 174 S. W. 607, this court held that a mere reference to the fact of the failure of the accused to testify, accompanied by no discussion of it and no testimony of any possible injury from that fact, would not necessitate a reversal. See, also, Dyer v. State (No. 8173) 257 S. W. 902, this day decided; Jenkins v. State, 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812; and Manley v. State, 92 Tex. Cr. R. 537, 244 S. W. 533. We are not able to bring ourselves to believe this to be a case in which there was such transgression of the rule as to call for a reversal.

The judgment of the trial court will bé affirmed. 
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