Moore v. State

CHRISTIAN, Judge.

The offense is theft of property over the value of $50; the punishment, confinement in the penitentiary for two years.

No statement of facts is brought forward. We are unable to appraise the bills of exception found in the record in the absence of a statement of facts.

In his motion for a new trial appellant alleged the jury were guilty of misconduct in that they considered and discussed his failure to testify. The testimony adduced on the motion was to the effect that one of the jurors casually referred to appellant’s failure to testify. The foreman of the jury promptly admonished him, and no discussion of the failure of appellant to testify ensued. This court has uniformly held that a casual reference in the jury room to the failure of the accused to testify, which is not followed by any discussion of such failure, is not such misconduct as would warrant a reversal of the judgment. Day v. State, 48 S. W. (2d) 266.

The.sentence is reformed to show that appellant has been convicted of the offense of theft of property over the value of $50.

As reformed, the judgment is affirmed.

Reformed and affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.