
    LAAKE v. STATE.
    (No. 11114.)
    Court of Criminal Appeals of Texas.
    Nov. 9, 1927.
    Criminal law <@=>925(I) — Evidence held to require new trial because jurors discussed defendant’s failure to testify (Code Cr. Proo. 1925, art. 710).
    In prosecution for the unlawful transportation of intoxicating liquor, evidence held to show that the jurors, had discussed defendant’s failure to testify, so as to require the granting of a new trial because of violation of Code Cr. Proe. 1925, art. 710, prohibiting the jury from considering the circumstance of a witness’ failure to testify.
    Appeal from District Court, Williamson County; Cooper Sansom, Judge.
    Ben Laake was convicted of the unlawful transportation of intoxicating liquor, and he appeals.
    Reversed and remanded.
    Amos Peters, of Taylor, and Wilcox & Graves, of Georgetown, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

■ Conviction is for the unlawful transportation of intoxicating liquor; punishment being one year in the penitentiary.

We find it unnecessary to set out the evidence. Appellant questions the soundness of the opinion in Craft v. State (Tex. Cr. App.) 295 S. W. 617. We think a further discussion of the question there decided is uncalled for. See Yeager v. State, 106 Tex. Cr. R. 462, 294 S. W. 200; Purswell v. State (Tex. Cr. App.) 294 S. W. 1107; McFarlan v. State, 106 Tex. Cr. R. 384, 292 S. W. 885; Stansberry v. State (Tex. Cr. App.) 295 S. W. 604. Tbe opinion in Craft, supra, bas been followed .in a number of cases which are not yet [officially] reported, one being No. 10871, Jenkins et al. v. State (Tex. Cr. App.) 299 S. W. 642, decided October 26, 1927.

In his motion for new trial appellant alleges that the jury, in violation of article 710, C. C. P. 1925, had considered as a circumstance against him the fact that he did not testify as a witness in his own behalf. Upon hearing the motion, the testimony of all the jurors was taken. Their evidence is not in agreement at all points; there being such divergence as would be expected where twelve witnesses are examined upon a particular issue. Two jurors disclaimed having heard any statement whatever about appellant not having testified. Some of the other jurors testified that they heard a reference to appellant not testifying, but did not hear in connection therewith anything said to the effect that the liquor in-question might have been “vinegar.” Others heard discussion about the “vinegar” proposition, but say in connection with it they heard no reference to' appellant not testifying. It seems to be established beyond question that during the deliberation of the jury something was said both about the “vinegar” and about appellant not having testified. From the entire evidence it is difficult to escape the conclusion that the two incidents were related and that it came about in the following manner: During the discussion as to whether appellant was guilty, some juror remarked that the liquor in question might have been “vinegar,” whereupon, another juror replied, if it was vinegar, appellant would or could have gotten on the stand, and said so, or asked why, if it was vinegar, appellant did not get on the stand and so testify. Three jurors testified positively that the incident arose as just related.' Upon the point we quote the testimony of still another juror:

“Well, the fact that there was not anything brought out pertaining if this was not whisky, what .was it, and, if it was not whisky, it was thought he would have taken the stand in his own behalf to try to declare his innocence in some form. Nothing was said about ‘if it was vinegar.’ I believe they discussed, ‘If it was vinegar, why didn’t he say so ?’ ”

It seems,to be established with reasonable certainty that, at a time when the jury was not agreed as to appellant’s guilt, some of the jurors did discuss and consider appellant not testifying as a circumstance against him, and that it was more than a casual reference. The incident appears to have been used as an argument to answer a suggestion that the liquor in question might have been vinegar. Under such circumstances we have no option other than to revérse the judgment and remand the case for new trial under the positive mandate of article 710, C. O. P. 1925.

On account of the disposition made of the case, we deem it unnecessary to discuss other questions presented.

The judgment is reversed, and the cause remanded. 
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