
    RONE v. STATE.
    (No. 10151.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1926.)
    1. Criminal law <&wkey;957(5) — Statements of jury, in attempting to absolve themselves from criticism for violating instructions of court, are of little weight.
    Although jurors testified that none of the remarks about matters they were instructed not to discuss influenced them in reaching verdict, such statements of jury are of little weight when they are attempting to absolve themselves from criticism for violating instructions.
    2. Criminal law <&wkey;925'/2 (3) — Conduct of jury, in discussing failure of defendant to testify, was reversible error..
    Conduct of jury in discussing failure of defendant to testify in liquor prosecution,’ where jury did not agree on verdict -of guilty before discussion, but did agree afterwards, held reversible error.
    3. Criminal law <&wkey;925'/2(3) — Jury violated statute against receiving evidence after retiring, In liquor prosecution, where juror stated that he had found empty jars and believed there was something loose around defendant’s premises (Code Cr. Proo. 1925, art. 753).
    Statements of juror, after jury .had retired, in liquor prosecution, that he had found empty fruit jars near defendant’s premises when on fishing trip and had thought there must be something loose around there, mere violation of Code Or. Proc. 1925, art. 753, against receiving other testimony after retiring.
    ' Commissioners’ Decision.
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    L. E. Rone was convicted for unlawful possession of intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    Heyser & Hicks, Martin, Oneal & Allred, and James V. Allred, all of Wichita Palls, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted in the district court of Wichita county for the unlawful possession of intoxicating liquor for the purpose of sale, and his punishment assessed at two years in the penitentiary.

It appears that the officers searched the house and premises of the appellant and there found some whisky, and that, while attempting to get into the house, they observed, in the kitchen, whisky being poured out of a pitcher into the sink. Other evidence was introduced by the state showing that whisky had been found on the premises of the appellant, and as to his being seen with whisky thereon by some young boys living in that neighborhood. Evidence was also introduced by the state to the effect that the appellant had furnished money to the aforesaid boys for the purpose of getting them to leave town, and not be present as witnesses for the state on the morning of the trial. The appellant failed to testify on his own behalf, but introduced evidence tending to discredit the testimony offered by the state.

There are several bills of exception in the record, but there is only one question raised which we deem of such importance as to warrant a discussion in this opinion and that is the complaint urged to the misconduct of the jury in discussing, during their deliberations, the failure of the appellant to testify. After the jury retired to consider their verdict, the first ballot disclosed seven for acquittal and five for conviction. It further appears that before any verdict of conviction was reached and during the deliberations of the jury thereon, and while the jury was discussing the evidence as to the appellant furnishing money for the boys to leave town so they would not testify in the case, some of the jurors stated they wondered why the appellant failed to take the stand and deny .the charges against him, and also deny that he had given the $5 to the boys. It further appears from the testimony of the jurors on this issue that some juror stated it was the first case he had ever seen or known in which the defendant failed to testify, and that, when these matters were mentioned and discussed, an argument arose as to whether or not the appellant had to testify, some of the jurors contending that he did not and others taking a contrary view; then the charge of the court was résorted to and read to settle the matter. It also appeared in evidence on this issue that one of the jurors stated that he had heard that there was a roadhouse over in the settlement where the appellant lived, and also testified that, on a fishing trip to a place near the premises of the appellant, he had discovered some empty fruit jars, and remarked:

“I said there must be something loose around here.”

It suffices to say that after this discussion and after several ballots the standing of the jury changed from seven to five for acquittal to a verdict of guilty, with punishment assessed at two years in the penitentiary. It is true that all of the jurors who testified stated that none of these remarks were considered by them in reaching their verdict, but, as has been frequently said by this court, such statements of the jury are of little weight, when they are attempting to absolve themselves from criticism with reference to violating the instructions of the court not to discuss said matters during their deliberations. We think the conduct of the jury in discussing the failure of appellant to testify, as above set out, was in direct violation of the statute and decisions of this court. Barrow v. State, 88 Tex. Cr. R. 82, 225 S. W. 53; Kelly v. State, 95 Tex. Cr. R. 138, 252 S. W. 1065; Hennington v. State, 100 Tex. Cr. R. 78, 271 S. W. 624; Franks v. State, 100 Tex. Cr. R. 228, 272 S. W. 451; Brown v. State, 101 Tex. Cr. R. 639, 276 S. W. 929; Hughes v. State, 101 Tex. Cr. R. 82, 274 S. W. 151. There was also a violation, on the part of the jury, of the statute against receiving other testimony after retiring to consider their verdict. Article 753, C. C. P.

For the error above discussed, the judgment of the trial court is reversed and remanded. ■

PER CURIAM. The foregoing opinion of the Oommission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court. 
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