Davis v. State , 159 Tex. Crim. 640 ( 1953 )

BELCHER, Judge.

The indictment charges appellant under Art. 567b, V.A.P.C., with giving a check of over the amount of $50, without sufficient funds and, for the purpose of enhancing the punishment, two prior convictions for felonies less than capital were also alleged. Upon conviction, his punishment was assessed at life imprisonment.

Ward Phenix testified that on November 1, 1952, he sold appellant a 1950 Ford automobile for $1500, and the appellant gave him the check described in the indictment in the sum of $500 drawn on the First National Bank of Gainesville, Texas, in part payment therefor which the appellant signed in his presence; that appellant told him at the time of the sale and delivery of the automobile that he had. sufficient funds in said bank to take care of the check. He further testified that he found the next day that no such bank existed, and also found that appellant did not have an account with any bank in Gaines-ville. He further testified that appellant gave Gainesville as his address and, upon investigation, no such person was known at the given address.

The check was admitted in evidence; the alleged prior convictions were properly shown; and appellant did not testify.

We find the evidence sufficient to support the conviction.

Appellant contends that the court erred in overruling his motion for a new trial, the ground being that the jury considered as a circumstance against him his failure to testify in his own behalf.

Appellant offered the testimony of four jurors as follows: Juror Duncan testified that before the jury reached a verdict, the failure of the appellant to testify about the two prior convictions was mentioned, and then the foreman admonished the jury not to mention or consider same, but that it was mentioned again later. Juror Hall testified that the failure of the appellant to testify was mentioned by from “three to five” of the jurors before they reached a verdict, and that he cautioned them that it was improper, and that it wasn’t brought up again. Juror Reed testified that the subject of the appellant’s failure to testify “came up several times and it was more than once it was talked about whether we were supposed to consider it or not,” and that they then read in the court’s charge that they were not to consider it; that they were admonished by the foreman not to consider the appellant’s failure to testify, but that it was later mentioned. Juror Dickerson testified, in substance, as the above jurors.

Five of the jurors testified for the state as follows:

Juror Clemons, the foreman of the jury, testified that one of the jurors said “Well if he wasn’t guilty why didn’t he take the stand why wasn’t he put on the stand” and I said “That’s not to be discussed at all in this case, it is none of our business why he wasn’t put on the stand or wasn’t used, as a witness ;” that this matter was dropped and he didn’t hear it mentioned again. Juror Hilley testified that he heard one juror mention the failure of the appellant to testify, then the foreman admonished the jury not to refer to it and he heard no more about it. Three other jurors were offered by the state and each testified, in substance, as the above jurors.

The testimony of the above jurors upon the hearing of the motion for a new trial developed a conflict of evidence. It appears that the failure of the appellant to testify was referred to, however, the mere mention of such failure not followed by any discussion warrants the finding by the trial court that appellant’s failure to testify was not considered by' the jury as a circumstance against him. Henry v. State, 141 Tex. Cr. R. 486, 149 S.W. 2d 115. The trial judge heard the evidence on the motion for a new trial, and there being a conflict in the testimony as to whether the jury discussed or considered appellant’s failure to testify as a circumstance against him, his action in refusing a new trial will not be disturbed unless he abused his discretion in reaching his decision. Graham v. State, 123 Tex. Cr. R. 121, 57 S.W. 2d 850; Scrivnor v. State, 121 Tex. Cr. R. 565, 50 S.W. 2d 329; Lacy v. State, 124 Tex. Cr. R. 362, 61 S.W. 2d 845.

We conclude that the evidence fails to show that the trial court abused his discretion in refusing the motion for a new trial.

The judgment of the trial court is affirmed.

Opinion approved by the Court.