Howard v. State , 76 Tex. Crim. 297 ( 1915 )

By complaint and information appellant was prosecuted for drunkenness in a public place. They aver that on or about November 7, 1914, he did then and there by the voluntary and immoderate use of spirituous, vinous and malt liquors unlawfully get drunk and was then and there found in a state of intoxication in a certain public place, towit; in a restaurant to which people commonly resort for the purpose of eating and purchasing refreshments. The court did not err in overruling his motion to quash them. It was not necessary to further identify the public place than was done. Nor was it necessary that they should allege the particular place in the county. The allegation that it was in Newton County was all that is required.

Appellant complains that the evidence is insufficient to sustain the conviction. We think it was sufficient.

Appellant took no bill of exceptions to any of the proceedings during the trial. After the conviction he filed a motion for new trial setting up several grounds therefor, and he took several bills of exception to the court's overruling each ground of his motion for new trial. This raises no such question in away that it can be reviewed.

In the last ground of his motion he claimed that while the jury was considering their verdict they alluded to his failure to testify. The court, it seems, heard the evidence and each of the six jurors, only, testified to the same thing, as follows: "After we received the charge from the court and retired to consider of our verdict, but before we began to consider our verdict, and when we first went out one of the jurors made mention of the fact that the defendant failed to testify. This did not influence me in the least in arriving at a verdict." This court has many times held that such bare mention or allusion, when the jurors swear it in no way influences them, presents no ground to set aside the verdict. Coffman v. State, 73 Tex.Crim. Rep., 165 S.W. Rep., 939, and cases there cited. The judgment will be affirmed.

Affirmed.

[Rehearing denied March 24, 1915. — Reporter.]