
    KELLUM v. STATE.
    (No. 6990.)
    (Court of Criminal Appeals of Texas.
    May 17, 1922.)
    1. Affidavits <&wkey;6 — Affidavit taken before defendant’s counsel held invalid.
    An affidavit of a juror on motion for new trial, taken before defendant’s counsel, is not in condition to be considered.
    2. Criminal law c&wkey;957(5) — Affidavit of juror held insufficient basis for new trial.
    On appeal from a refusal to grant a new trial after a conviction of burglary, an affidavit of a juror held insufficient as not showing that the alleged discussion of defendant’s failure to testify occurred before a verdict was agreed upon.
    Appeal from District Court, Wise County; P. O. McICinsey, Judge.
    B. B. Kellum was convicted of burglary, and he appeals’.
    Affirmed.
    Roberson & Lopp, of Fort Worth, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Wise county of burglary, and his punishment fixed at confinement in the penitentiary for a period of two years.

There appear in the record no bills of exception taken either to the charge of the court or to the introduction or rejection of any evidence. The only complaint that appears to be made here on behalf of the accused is of the fact that the jury, while in their retirement, discussed appellant’s failure to testify. The motion for new trial setting up this alleged misconduct of the jury is not sworn to by appellant or any one for him, nor does it appear that any evidence was introduced upon the hearing of said motion for new trial in the court below. Attached to said motion appears what purports to be an affidavit of one of the jurors who tried the case. Same is not in condition to be considered by us, for the reason that it is made before appellant’s attorney. Testard v. Butler, 20 Tex. Civ. App. 106, 48 S. W. 753; Rice v. Ward, 93 Tex. 532, 56 S. W. 747; Maples v. State, 60 Tex. Cr. R. 171, 131 S. W. 567. Many other authorities might be cited in which this court has held that an affidavit taken before the attorney for the appellant cannot be considered by us. ■

If said affidavit was in condition to be considered, same would be insufficient to present error, as there is no statement therein as to when the reference was made to the failure of the defendant to testify. It has been held by this court that, if the jury had already agreed upon their verdict before such reference was made, this would not constitute' any error, and we have held that the affidavits appended to the motion for new trial, or the testimony introduced before the court on the hearing, must not only show what was said, and that it was said while the jury were in their retirement, but it must be further shown that it was at a time and in a manner where it would appear to have in some manner affected the verdict.

Finding no error in the record, the judgment will be affirmed. 
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