Lamb v. State , 98 Tex. Crim. 358 ( 1924 )

The motion sets out no new authorities but argues the same questions disposed of by us in our original opinion. In view of appellant's insistence we have again examined the testimony given by the four jurors who appeared upon the hearing of the motion for new trial based, in part, upon alleged misconduct of the jury. The foreman of the jury said that after they had voted and stood ten for conviction and two for acquittal, some one mentioned the fact that the appellant did not testify, and that he at once spoke up and said they were instructed not to consider that, and that the matter was not further referred to. The second juror introduced said he did not hear any mention made in the jury room of the fact that appellant did not take the stand and testify. The third juror, Larue, who was one of the two who voted at first for acquittal, said that he had an argument with another juror over the facts and that the other juror referred to the fact that the appellant did not testify and that he then told him they were instructed not to consider that fact, and that he also procured the charge of the court and read to said other juror what the court had instructed them on this point. The juror who had the discussion just referred to was also put on the stand and testified that the failure of the appellant to take the stand was referred to and he and juror Larue went and got the charge of the court and read therein what the court instructed them on this point. There is not a suggestion in the record that the matter was injuriously referred to, or that there was any discussion of appellant's failure to testify as a guilty circumstance. This presents no discussion of appellants failure to testify further than its mention by one juror, who was promptly reproved. See Coffman v. State, 73 Tex.Crim. Rep.; Probest v. State, 60 Tex. Crim. 608; Rhodes v. State, 153 S.W. Rep.,128; Cooper v. State, 72 Tex.Crim. Rep.; Watson v. State, 82 Tex. Crim. 305; Willson v. State, 87 Tex.Crim. Rep.; Taylor v. State, 227 S.W. Rep., 679.

This court has held in many cases that the granting of a new trial for the character of misconduct set out in this case, is particularly within the discretion of the trial court and that his action will not be interfered with on appeal unless it is clearly wrong and contrary to the testimony. Douglas v. State,58 Tex. Crim. 122; Barber v. State, 64 Tex.Crim. Rep.; Jones v. State, 72 Tex.Crim. Rep..

We find nothing in the motion leading us to conclude that our disposal of the alleged change in the indictment after its return by the grand jury, was erroneous.

The motion will be overruled.

Overruled.