
    PURCELL v. STATE.
    (No. 9644.) 
    
    (Court of Criminal Appeals of Texas.
    April 28, 1926.)
    1. Criminal law<&wkey;878(2).
    Where there were three counts in indictment, and court submitted only the third, a general verdict of guilty was sufficiently responsive.
    2. Jury <&wkey;432—'That juror lived with father and mother, and rendered no real estate in the county, held not to show juror’s lack of quali- ■ fieation because neither a householder nor a freeholder.
    Accused held not to have sustained burden of showing juror’s lack of qualification because neither a householder nor a freeholder, by testimony that juror lived with his father and mother, and rendered no real estate in the county; ■
    3. Criminal law &wkey;>857(3)— Casual reference to accused’s failure to testify, heard by only three 1 jurors, and not further discussed, held not to require reversal.
    i Casual reference by jurors, after retirement, to accused’s failure to testify, which was properly objected to, and not further discussed, and heard by only three jurors, ,helá not to require reversal.
    Appeal from District Court, Briscoe County; R. C. Joiner, Judge.
    Vennie Purcell was convicted of selling intoxicating liquor and appeals.
    Affirmed.
    Norrid & Daniel, of Silverton, and Ox.ford & Oxford, of Plainview, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
    
      
       For opinion on rehearing, see 283 S. W. 1072.
    
   EATTIMO'RE, J.

Conviction in district court of Briscoe county of selling intoxicating liquor; punishment fixed at one year in the penitentiary. There is no statement of facts, and we are unable to appraise appellant’s complaints directed at the sufficiency of the testimony.

There were three counts in the indict- ' ment. The court submitted only the third. A general verdict of guilty was sufficiently , responsive. Turner v. State, 22 Tex. App. 42, 2 S. W. 619; Boren v. State, 23 Tex. App. 28, 4 S. W. 463; Southern v. State, 34 Tex. Cr. R. 144, 29 S. W. 780, 53 Am. St. Rep. 702; Escue v. State, 88 Tex. Cr. R. 447, 227 S. W. 483.

The complaint directed at juror Simpson on the ground that he was neither a householder in the county nor a freeholder in the state is not sustained by the record. The testimony of the tax collector of the county and an abstractor, that said juror lived with his father and mother and rendered no real estate in that county, does not make out appellant’s case, nor show that said juror did not own real estate in other parts of the state. The burden is on appellant to affirmatively show the juror lacking in qualification. •

The only other bill of exceptions is to alleged misconduct of the jury in alluding to appellant’s failure to testify. When the motion for new trial was heard eight jurors gave testimony, five of whom affirmed that no reference whatever was made in the jury room in their hearing as to the fact of appellant’s failure to take the witness stand. R. M. Hill, one of the other jurors, said he read the charge wherein the court instructed them not to consider appellant’s failure to testify as a circumstance against him, and in connection therewith he made the remark that appellant had not testified and that the court had instructed them not to consider that. J. G. Hill, another juror, swore that in reading the charge it was stated that appellant did not go on the stand, but that this could not be held against him. He said that no one discussed it further than the remark just referred to. Henry Rich, another juror, with J. 0. Hill, were the two who voted for acquittal, and Rich was the last man to agree to conviction. On this hearing he swore that—

“It was just merely mentioned that defendant had not taken the witness stand; I don’t remember the exact words that were said, nor could I say when it was mentioned.”

He said he believed Mr. Hill made the remark that the court charged them not to use that as1 evidence against the party, and after that it was not mentioned. Manifestly this is not such showing as to call for the setting aside of this verdict under the authorities. A casual reference to the failure of the accused to testify, which is promptly checked and not further discussed, will not call for a new trial in the lower court nor a reversal at our hands. Non.e of the jurors seem to have heard what these three jurors testify was said among themselves, and the connection arid manner of the allusion, if any, coupled with the further proposition that the matter was not discussed or considered by the others or in their presence, is affirmed by these three men. What Mr. Rich .stated he could have said is too indefinite as to time, place, substance, etc., to reflect on the discretion of the learned trial judge in refusing the motion for a new trial. As a matter of fair procedure we might express doubt as to the proposition that a juror, who is the only one holding out for acquittal, could by such remark, even if made, compel a reversal of the case. We do not think Boozer v. State, 82 Tex. Cr. R. 72, 198 S. W. 295, cited, is a-case holding contrary to our conclusion. Said case is much stronger on its facts in favor of the accused than the instant case.

Finding no error in the record, the judgment will be affirmed. 
      
       <@^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     