
    HALTOM v. STATE.
    (No. 10067.)
    
    (Court of Criminal Appeals of Texas.
    May 19, 1926.
    Rehearing Denied Oct. 27, 1926.)
    1. Criminal law <&wkey;I099(6).
    Statement of facts, filed more than 90 days from date of notice of appeal, must be stricken on motion, under Code Cr. Proc. 1925, art. 760.
    2. Criminal law <&wkey;l 158(3).
    Refusal of new trial, asked on ground that jurors discussed defendant’s failure to testify will not be reversed, in absence of abuse of discretion, where evidence is conflicting.
    3. Criminal Taw <&wkey;956(13).
    Testimony showing mere allusion to defendant’s failure to testify, in consideration of verdict, impropriety. of which is immediately called to jury’s attention, is not ground for reversing denial of new trial.
    On Motion for Rehearing.
    4. Criminal law <&wkey;956(l3).
    Where one juror’s testimony shows jury’s misconduct in discussion of defendant’s failure to testify, and large number of jurors’ testimony is contradictory, denial of new trial is not abuse of discretion.
    Commissioners’ Decision.
    Appeal from District Court, Nacogdoches County; C. A. Hodges, Judge.
    Lawrence Haltom was convicted of unlawfully transporting intoxicating liquor, and he .appeals.
    Affirmed.
    S. M. Adams and R. A. McAlister, both of Nacogdoches, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles,-Asst. State’s Atty., of Groesbeek, for the State.
    
      
      For opinion on application for leave to file second motion for rehearing, see 287 S. W. 1029.
    
   BAKER, J.

The appellant was convicted in the district court of Nacogdoches county-for unlawfully transporting intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record discloses that the term of the trial court at which the appellant was convicted began on the 7th day of September, 1925, and ended on the 24th day of October. 1925, and that the appellant’s motion for á new trial was overruled on October 1, 1925, at which time he gave notice of appeal, and was granted 90 days after the adjournment of said court within which to file his bills of exception and statement of facts. The statement of facts was filed on January 15, 1926, 109 days after the date of the notice of appeal, and under the new Code said statement of facts should have been filéd within 90 days from the date of giving said notice of appeal. See article 760,1925 C. C. P. Also see Triggs v. State (No. 10082), decided by this court on April 28, 1926, and Bailey v. State (No. 10078) 282 S. W. 804, opinion rendered April 21, 1926, both eases [officially] unreported as yet.

The state’s attorneys with this court move to strike out said statement of facts on account of same being filed more, than 90 days from the date of said notice of appeal, and under the statute and authorities, supra, we are forced to sustain said contention.

With the statement of facts thus eliminated, there is only one question left for our consideration, which is presented in bill of exceptions No. 13, wherein the appellant contends that the court erred in refusing to grant him a new trial, for the reason, it is contended, that the jurors discussed the failure of the defendant to testify and matters incident thereto while deliberating upon their verdict. The trial court heard evidence upon said allegation by having the jurors testify thereon, and from said testimony it is clearly shown that the testimony introduced on said issues was conflicting. Therefore the decision of the trial court on the point at issue is binding upon this court, in the absence of a showing that he abused his discretion. See Branch’s Ann. P. C. § 574, citing Shaw v. State, 32 Tex. Cr. R. 155, 22 S. W. 588; Adams v. State, 48 Tex. Cr. R. 452. 93 S. W. 116; Allen v. State, 62 Tex. Cr. R. 560, 138 S. W. 593, together with many other authorities therein cited.

To give this bill its most favorable construction in behalf of the appellant, we think the most that can be said is that the testimony only shows a mere allusion to the defendant’s failure to testify, which, it has been many times held by this court, will not of itself cause a reversal when it is immediately thereafter called to the jurors’ attention that they must not consider same under the charge of the court, as was true in this instance. See Branch’s Ann. P. C. § 569, citing Jenkins v State, 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812; Howard v. State, 76 Tex. Cr. R. 297, 174 S. W. 607, and other authorities there collated.

Finding no reversible error in the record, the judgment of the trial court is in all things ordered affirmed.

PER CURIAM. The foregoing opinion by the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Appellant raises but one question in his motion for rehearing, viz. that we erred in holding his bill of exceptions No. 13 not to show error in the alleged misconduct of the jury. We have .again carefully examined said bill of exceptions. Appellant introduced one juror who testified to facts which would show misconduct. The state introduced a large number of the jurors who gave testimony contradictory to that of the witness introduced in behalf of appellant. In this condition of the record we deem ourselves well within the rule in holding that, because of the conflict of testimony, the discretion of the trial judge in deciding same against appellant was not abused.

The motion for rehearing is overruled. 
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