
    HOLLAND v. STATE.
    (No. 10987.)
    Court of Criminal Appeals of Texas.
    Oct. 5, 1927.
    1. Criminal law <&wkey;III5(2) — Where bill of exceptions showed court instructed counsel to ask jury certain questions in body, but no lack of permission to examine individually, no error was shown (Const, art. 1, § 10; Code Cr. Proo. 1925, art. 3).
    Where bill of exceptions showed that court instructed accused’s counsel to ask jury certain questions in body, and stated that, if counsel desired, be could later examine them individually, there being no recital in bill that counsel was not permitted to further examine them individually, it will be presumed that he was, and bill of exceptions showed no error depriving accused of rights provided in Const, art. 1, § 10, Code Cr. Proc. 1925, art. 3.
    2. Criminal law <&wkey;925¡/2(3) — 'Where statements by juror concerning accused’s reputation, made when jury were divided on question of punishment, had not been received in evidence, accusetl was entitled to new trial (Code Cr. Proc. 1925, art 753, subd. 7).
    In liquor prosecution, where statements made by juror that accused was ringleader among negroes, that this was not his first offense, and that jury would be getting at source of trouble by sending him to penitentiary for good term, had not been received in evidence during trial, and were made when jury were divided on question of number of years that would be assessed against accused, and some of jurors thereafter voted heavier penalty, accused was entitled to new trial under Code Cr. Proc. 1925, art. 753, subd. 7.
    3. Criminal law <&wkey;925'/2(3) — Information given by one of jurors to others is “other testimony” within statute providing for new trial (Code Cr. Proc. 192,5, art. 753, subd. 7).
    Information given by one of jurors to others is new and “other testimony” within meaning of Code Cr. Proc. 1925, art. 753, subd. 7, providing that new trial shall be granted in cases of felony, where jury, after having retired to deliberate on case, have received other testimony.
    4. Criminal law &wkey;>l 163(6) — 'Where, after retirement, jury received other evidence damag-aging to accused, presumption of injury obtains, and burden rests upon state to rebut presumption (Code Cr. Proc. 1925, art. 753, subd. 7).
    Where, after retirement, jury received other evidence damaging to accused within Code Or. Proc. 1925, art. 753, subd. 7, relating to new trial, presumption of injury will obtain, and burden rests upon state to rebut such presumption.
    
      5. Criminal law <&wkey;l 163(6)— Presumption of injury from evidence received by jury after retirement held not rebutted, where heavier penalty was imposed (Code Cr. Proc. 1925, art. 753, subd. 7).
    State did not discharge burden of rebutting presumption of injury from statements made by juror concerning accused’s reputation which was other evidence received after jury retired under Code Cr. Proc. 1925, art. 753, subd. 7, where it was shown that some of jurors favored lighter penalty before statements were received, and thereafter voted for heavier penalty imposed.
    Commissioners’ Decision.
    Appeal from District Court, Runnels County ; J. O. Woodward, Judge.
    Griggs Holland was convicted of transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    Crager and Dickey, of Ballinger, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   CHRISTIAN, J.

The offense is transporting intoxicating liquor; the punishment confinement in the penitentiary for three years.

The record contains fourteen bills of exception. In view of the fact that the case must be reversed for the error hereinafter pointed out, we deem it unnecessary to consider in detail appellant’s several bills of exception, as the matters complained of therein are not likely to occur on another trial of the case.

By biE of exception No. 1 appellant complains of the action of the court in refusing to permit him on voir dire examination to individually examine each of the jurors in order that he might intelligently exercise the peremptory challenges allowed him by statute. The bill, as presented, is insufficient to manifest error. Its recitals show that the court instructed counsel for appellant to propound to the jurors in a body certain questions which he was then propounding to individual jurors. It is further shown by the bill that, in connection with his instruction to counsel, the court stated that if, after propounding the questions to the jurors in a body, counsel should desire to question any individual juror further, the privilege of so doing would be accorded him. There being no recital in the biU showing that counsel for appellant was not permitted by the court to further individually examine the jurors, the presumption must be indulged that he was accorded such right. While the right to appear by counsel, guaranteed by the BiE of Rights, carries with it the right of counsel, within reasonable limits, to examine each juror individually in order to prepare himself for the intelligent exercise of the peremptory challenges allowed him by statute, we are constrained to hold that appellant’s bill of. exception fails to show that his counsel did not have the opportunity of examining each juror individually. Article 1, § 10, Constitution of Texas; article 3, C. C. P.; Plair v. State, 102 Tex. Cr. R. 628, 279 S. W. 267.

In his motion for a new trial, appellant alleged that the jury, after retiring to deliberate upon the case, received other testimony. The specific complaint is that, before the penalty was determined, one of the jurors stated, in the presence and hearing of the jury, that he knew appellant; that he was a ringleader among the negroes; that this was not his first offense; and that the jury would be getting at the source of trouble if they would send him to the penitentiary for a good term. Appellant’s bill of exception shows that the testimony complained of had not been received in evidence during the trial. The testimony heard by the court on the motion was, in substance, this: The juror, alleged by appellant to have made the statements complained of, stated in the presence of the jury, before the penalty had been fixed, that he knew appellant; that he ran a barber shop; that his barber shop was a holdout for the rough element, an element that stayed out at night; that he was a ringleader among the negro population down there; and that the jury would be getting at the source of the trouble if they sent him up. Several of the jurors testified that they inferred from the statements that appellant was not a desirable negro. At the time the statements concerning appellant were made by the juror, the penalty had not been fixed. A ballot taken shortly before the statements were made showed that six of the jury were for three years, one or two for four years, and the rest for two years.’ One of the jurors testified that he had not voted for three years before the discussion took place, but that he believed that he thereafter changed his vote on the next ballot. The testimony of the various jurors is somewhat conflicting as to. their understanding of the remarks made by the juror. Practically all of the jurors, however, were of the opinion from what they heard that appeUant’s reputation was bad. All of the jurors testified that the statements did not influence their, action in finding a verdict. A penalty of three years was assessed against appellant.

We are of the opinion that the learned trial judge fell into error in refusing to grant appellant’s motion for a new trial. Subdivision 7 of article 753, C. C. P., provides that a new trial shall be granted in cases of felony where the jury, after having retired to deliberate upon a ease, have received other testimony. Information given by one of the jurors to the others is new and other testimony within the meaning of the statute. See McDougal v. State, 81 Tex. Cr. R. 179, 194 S. W. 944, L. R. A. 1917E, 930; Hanks v. State, 99 Tex. Cr. R. 218, 269 S. W. 106. Appellant’s bill of exception shows that the statements made by the juror concerning appellant’s reputation had not been received in evidence during the trial of the case, and that they were made at a time when the jury were divided on the question of the number of years that would be assessed against him. The testimony of the motion shows that some of the jurors who had stood for a penalty of two years prior to the time that the statements were made thereafter voted for a penalty of three years. The statements made by the juror, as to appellant’s reputation, being shown to be new and other testimony, are in our opinion of such material character as to create the presumption that they resulted in injury to appellant. Where, after retirement, the jury receive other evidence damaging to appellant, the presumption of injury will obtain, and the burden rests upon the state to rebut such presumption. Brown v. State, 101 Tex. Cr. R. 639, 276 S. W. 929. We are unable to reach the conclusion that the state discharged the burden of rebutting the presumption of injury.

Eor the error pointed out, the judgment is reversed, and the cause remanded.

PER CURIAM. 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. 
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