
    L. B. Clemmons v. The State.
    No. 15972.
    Delivered May 31, 1933.
    Reported in 61 S. W. (2d) 102.
    The opinion states the case.
    
      W. J. Baldwin, of Beaumont, for the appellant.
    
      
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   LATTIMORE, Judge.

Conviction for burglary; punishment, two years in the penitentiary.

We find no brief on file for appellant. But one question is raised in the record, viz: misconduct of the jury in receiving other testimony. The court heard the testimony of three jurors when the motion for new trial was presented. They stated that some discussion was had in the jury room of the fact that appellant was then under a suspended sentence in another case. There is nothing in the testimony of either juror, nor is it shown otherwise, that there was no testimony upon the trial that appellant was under a suspended sentence. In other words, it is not shown that the matter claimed misconduct was one which was not properly before the jury.

In addition to what we have just said, we observe that the jurors testified that by reason of the fact that attention was called in the jury room to appellant already being under a suspended sentence, they gave him a less penalty than they otherwise would have done. It thus becomes evident that whatever was said in this regard inured to the benefit of appellant and was not taken as a circumstance against him. This could not be harmful to appellant. This would not be such misconduct as would cause reversal.

The judgment will be affirmed.

Affirmed.  