
    AUTREY v. STATE.
    (No. 12858.)
    Court of Criminal Appeals of Texas.
    Feb. 5, 1930.
    
      John Ranspot, of Mineral Wells, and McLean, Scott & Sayers, of Fort Worth, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, the unlawful possession for the purpose of sale of intoxicating liquor; penalty, two years in the penitentiary.

Officers searching the residence of appellant found therein a half gallon of whisky and a quantity of empty half pint 'bottles. Appellant introduced evidence from physicians tending to show that the whisky was kept by him as a medicine for his wife. There was no evidence of any sale. On motion for new trial, jury misconduct was alleged, and jurors testified in substantiation of same. From the testimony of Juror Davis we quote:

“Yes, I think there was something said about his wife having quit him and filed suit for divorce on account of his being a bootlegger. * * * I think his general reputation was discussed during the deliberations. * * * I think the matter with reference to his wife having sued him for a divorce for being a bootlegger was discussed before we had arrived at a verdict. * * * I believe the first ballot was taken on innocence and guilt. I think, that was ten for guilty and two not guilty. * * * I heard some one say while we were deliberating in this case that he had known this defendant twelve or fifteen years, and he had never been anything else “but a bootlegger. * * * My first vote was one year. Yes sir, after hearing this discussed I finally agreed to two years.”

Other jurors testified to substantially the same thing. It was not denied. • No such testimony was introduced in evidence. Under the mandatory provisions of article 753, subd. 7, Code Cr. Proe. 1925, a new trial shall be granted where it is shown that the jury, after having retired to deliberate upon a case, have received other testimony. Where such fact is shown, the courts will not speculate on the injury to appellant, particularly where the verdict, as in this case, is twice the minimum. Nor will the error be cured by the introduction of 'evidence, as appears in this case, from some of the jurors that such matters did not affect their verdict. The question has been so many times and so plainly decided that trial judges ought to understand by now that a new trial should be granted upon a showing .of the character indicated herein. See Sparks v. State, 108 Tex. Cr. R. 367, 300 S. W. 939; Brown v. State, 101 Tex. Cr. R 639, 276 S. W. 929; Howell v. State, 94 Tex. Cr. R. 563, 252 S. W. 539; Rees v. State, 111 Tex. Cr. R. 414, 13 S.W.(2d) 108. The trial court should have taken the action that we are now forced to take under the law and given appellant a new trial.

Reversed and remanded.

PER CURIAM.

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