
    Lindsey Scott v. State
    No. 28,177.
    April 4, 1956.
    No attorney for appellant of record on appeal.
    
      Leon Douglas, State’s Attorney, Austin, for the state.
   BELCHER, Judge.

The conviction is for the unlawful possession of whiskey for the purpose of sale in a dry area with a prior conviction for a like offense alleged for enhancement; the punishment, six months in jail and a fine of $600.

No statement of facts on the main trial accompanies the record.

In appellant’s motion for a new trial it was alleged that while the jury was deliberating several of the jurors remarked that appellant was a professional bootlegger and that he made his living that way. It was further alleged that one of the jurors remarked that a hung jury would cost the county a lot of money.

The affidavit of one juror was attached to appellant’s motion, and it supports the allegations in said motion. Said affidavit was introduced on the hearing.

The state controverted the allegations in appellant’s motion and attached thereto the affidavits of ten of the jurors.

The affidavits of four jurors recited that no juror in the jury room stated that the appellant was a bootlegger; three of the jurors’ affidavits stated that nothing was said in the jury room about the costs of a hung jury to the county; and the affidavits of three other jurors recited that they didn’t hear any statement in the jury room that appellant was a bootlegger or hear any remarks about the costs of a hung jury to the county.

The allegations in appellant’s motion for new trial which the state controverted and the supporting affidavits made an issue of fact. The trial court resolved such issue of fact against the appellant, and we find no abuse of discretion in overruling the motion for a new trial.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the court.  