
    TRO v. STATE.
    (No. 9902.)
    (Court of Criminal Appeals of Texas.
    April 28, 1926.)
    1. Criminal law <&wkey;925/2(I)— Defendant, In prosecution for transporting liquor, in which it was controverted as to whether certain liquid was whisky, held entitled to new trial, where jury examined such liquid in jury room before reaching verdict to determine whether it was whisky.
    Defendant, in prosecution for transporting liquor, in which it was controverted as to whether certain liquid in evidence was whisky, held entitled to new trial, where jury examined such liquid and its container in jury room be-, fore reaching verdict to determine whether it was whisky, since such examination violated statute forbidding jury to receive new evidence after retirement.
    2. Criminal law <&wkey;858(3) — Where question of whether certain liquid was whisky was controverted issue, court held to err in permitting jury to take it to jury room.
    Where question of whether certain liquid was whisky was controverted issue in prosecution for transporting liquor, court held to be’ in error in permitting jury, over defendant’s objection, to take alleged whisky to jury room.
    Commissioners’ Decision.
    Appeal from District Court, Roberts County; W. R. Ewing, Judge.
    Pete Tro was convicted of unlawfully transporting intoxicating liquors, and he appeals.
    Reversed and remanded.
    Hoover, Hoover & Willis, of Canadian, 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 Roberts county of unlawfully transporting intoxicating liquors, and his punishment assessed at one year and one day in the penitentiary.

This is the second appeal to this court. The opinion in the first appeal will be found in 101 Tex. Cr. R. 185, 274 S. W. 634, where a sufficient statement is given showing the main issues involved; the facts being practically the same, with the exception that the appellant testified in the instant case.

Bill of exceptions No. 2 complains of the action of the court in permitting the jury to take the alleged whisky in question with them to the jury room during their deliberation, and bill No. 3 complains of the conduct of tiie jury, while deliberating upon their verdict, in examining said alleged whisky by smelling same, and in examining the lid to the jar for the purpose of determining whether the liquid was whisky, all of which, according to the record, was done 'by the jury before a verdict of guilty had been reached, and several of the jurors testified on motion for a new trial that upon an examination of the liquid they were confirmed in their belief that the same contained whisky. It was a controverted issue on the trial as tf> whether or not the liquid in question was whisky. It was the contention of the appellant that the use made by the jury of the liquid in the jury room was prejudicial to his defense, and violative of the statute forbidding the jury to receive new evidence after retirement. We think this contention is well taken, and that the court erred in refusing to grant the appellant a new trial on this ground, especially in view of the showing that it was used in a different manner than that accorded the evidence introduced upon the trial. Brown v. State, 92 Tex. Cr. 147, 242 S. W. 218; Skinner v. State, 101 Tex. Cr. R. 68, 274 S. W. 133.

We are also of the opinion that the court' was in error in permitting the jury, •over appellant’s objection, to take the alleged whisky in question with them in the jury room, under the facts of this case. ■

For the errors above mentioned, we are of the opinion that the judgment of the trial court should be reversed and the cause remanded, and it is accordingly so ordered.

PER OURIAM.. The foregoing opinion by the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  