
    The State of Kansas v. Claude Jett.
    No. 13,820.
    (77 Pac. 1135.)
    Appeal from Clark district court; E H. Madison, judge.
    Opinion filed July 7, 1904.
    Reversed.
    
      G. G. Coleman, attorney-general, and J. M. Grasham, ■county attorney, for The State; Hite da Niehols, of counsel.
    
      H. G. Mayse, and Gonly da Conly, for appellant.
   Per Ouriam:

The appellant appeals from the judgment of the district court finding him guilty of, and sentencing him for, the crime of rape. Several claims of error are made, but we find it necessary to consider but one.

Appellant did not take the stand in his own behalf upon the trial. Upon his motion for a new trial he sought to show by several of the jurors that this fact was discussed and considered to his detriment by the jury while deliberating in their jury-room. The court refused to permit this showing or consider this fact in passing upon the motion for the reason that it was incompetent, irrelevant, and immaterial, and went to show the motive of the jurors in arriving at their verdict.

We have just decided that the consideration by the jury of the fact that the defendant did not testify is prejudicial error, and the fact of its consideration may be shown upon the motion for a new trial. (The State v. Rambo, ante, page 777, 77 Pac. 563.) The court, therefore, should have entered upon the investigation tendered, and, if it should have found the verdict tainted with the vice indicated, should have set it aside and awarded a new trial.

The judgment is reversed, and the case remanded for further proceedings.  