
    HALTOM v. STATE.
    (No. 10067.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1926.)
    On application for leave to file second motion for rehearing.
    Denied.
    For main opinion, see 287 S. W. 249.
   LATTIMORE, J.

On the proposition that there is a conflict between our opinion in this case and in what we said in Reese v. State, 102 Tex. Cr. R. 511, 278 S. W. 451, and that the latter ease is right, appellant asks leave to fila a second motion for rehearing. We find no such conflict. In the Reese Case, supra, we said in the opinion that there was no denial of the alleged misconduct of the jury. In the instant case we say in the opinion that one juror, on the hearing of the motion for new trial, affirmed misconduct, but many other jurors denied it. In the Reese Case no issue was made of conflicting testimony. In the case before us there was such conflict.

The duty of this court to reverse the action of the trial court in refusing a motion for new trial, where there was testimony of material misconduct which was not denied, was plain in the Reese Case, but the application of the same duty as to the action of the trial court in the instant case, where one witness testified to misconduct and the remainder denied' it, calls for an affirmance on our part.

The application for leave to file a second motion for rehearing will be denied.  