
    WHITFIELD v. STATE.
    (No. 9185.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1925.
    State’s Rehearing Granted Jan. 27, 1926.
    Appellant’s Rehearing Denied April 28, 1926.)
    1. Criminal law <&wkey;>925!/2(3).
    Mere casual reference in jury room to matter not in evidence will not afford grounds for new trial.
    On State’s Motion for Rehearing.
    2. Criminal law <&wkey;957(3) — 'Where testimony of one juror as to misconduct was inconsistent with that of the other eleven, question of whether new trial should be granted was one of fact for court.
    Where testimony of one juror as to misconduct was inconsistent with that of the 'Other eleven, question of whether new trial should be granted was one of fact for court.
    3. Criminal law &wkey;( 174(2) — Where verdict in • prosecution for selling liquor was for lowest penalty and under facts sufficient to support it, casual reference in jury room that accused v/as bad about lighting held not reversible error.
    Where verdict in prosecution for selling liquor was for lowest penalty and under facts sufficient to support it, casual reference in jury room that accused was bad about fighting held not reversible error.
    On Appellant’s Motion for Rehearing.
    4. Criminal law <&wkey;925</2 (3) — Trial court held justified in refusing motion for new trial on ground of misconduct of jury, where discussion of jurors which was objected to was not heard by only juror who was for acquittal.
    Trial court held justified in refusing motion for new trial on ground of misconduct of jury, where discussion of jurors which was objected to was not heard by only juror who was for acquittal.
    <£^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Bob Whitfield was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    Collins, Dupree & Crenshaw, of Hillsboro, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, .Jr., Asst. State’s Atty., of Tyler, for the State.
   BHRRT, J.

The appellant was convicted in the district court of Hill county for the offense of selling intoxicating liquor, and his punishment assessed at confinement in the penitentiary for a term of one year.

The state’s testimony was sufficient to show a sale, perhaps, if taken alone. Her only witness to the fact of the sale, however, admitted that he was under the influence of liquor at the time he is supposed to have bought the liquor in question, and frankly admits that he was hardly in a condition to remember what really happened on the occasion. The appellant’s testimony was to the effect that no sale was made, and he was supported in this statement by the testimony of another witness who was indisputably at the home of the appellant at the time the sale is alleged to have taken place.

The appellant complains because the court refused him a new trial on account of the misconduct of the jury. Three of the jurors testified for the appéllant, and the substance and purport of their testimony was to the effect that before the verdict was reached, and while some jurors were voting for an acquittal, the remark was made that the defendant was one of the worst bootleggers there was around Itasca. And it was also in testimony that it was mentioned several times that the defendant was a bad character, and a discussion was had about a. difficulty between the defendant and the sheriff of Hill county. It seems clear from the record that these matters were mentioned several times in the jury room, and that the mention of them was more than a mere casual reference. The state placed some members of the jury on the witness stand on the motion for a new trial, and they testified that they did not hear the above statements made in the jury room. We think it a fair statement of the record to say, however, that no juror denied that such statements were made, and no juror denied that such statements were discussed by those members who claimed to have heard and discussed them. The full substance of the testimony of the jurors testifying for the state was tq the effect that they heard no such statements, but each juror admitted that such statements may have been discussed and not heard by him. It is well settled in this state that a'mere casual reference to a matter not in evidence in the jury room will not afford grounds for a new trial. Gutierrez v. State, 272 S. W. 780, 100 Tex. Cr. R. 364. But we think the record in this case shows more than a casual reference to the matters complained of, and the evidence being sharply conflicting as to appellant’s guilt, we hold that the court should have granted a new trial on account of the misconduct of the jury. Franks v. State, 272 S. W. 451, 100 Tex. Cr. R. 228; Dunn v. State, 161 S. W. 467, 72 Tex. Cr. R. 170; Williamson v. State, 136 S. W. 1071, 62 Tex. Cr. R. 132; Hall v. State, 106 S. W. 379, 52 Tex. Cr. R. 250; Hargrove v. State, 99 S. W. 1121, 51 Tex. Cr. R. 47.

• Believing that the learned trial judge was in error in refusing a new trial on account of the misconduct of the jury, it is our opinion that the judgment should be reversed and the cause remanded.

PER CURIAM.

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

On State’s Motion for Rehearing.

BERRY, J.

On more mature consideration of the record in this case, we feel impelled to say that we were in error in stating that three of the jurors testified for the appellant to the effect that the statement was made in the jury room that the defendant was one of the worst bootleggers around Itasca. The testimony is in a rather confused state in the bill of exceptions, and this perhaps accounts for our oversight in the matter. We think it clear from a re-examination of the same that only one juror made this statement, and we are convinced now that the evidence of the other eleven is entirely sufficient to show that neither of them made any such statement. Under this condition of the record, it became a question of fact to be determined by the trial court, and we think the court did not abuse his discretion in holding in effect that such statement was not made. Gutierrez v. State, 272 S. W. 780, 100 Tex. Cr. R. 364, and authorities there cited.

Neither do we think that the evidence is sufficient to show injury by reason of the statement alleged to have been made by some of the jurors to the effect that appellant was bad about fighting. This was a mere casual reference, and as the verdict was for the lowest penalty under facts entirely sufficient to support the verdict, this matter does not present reversible error. Cox v. State, 12 S. W. 493, 28 Tex. App. 92.

Believing that we were in error in our original opinion, the state’s motion for rehearing is granted, the judgment of reversal is set aside, and the judgment of the trial court is affirmed.

PER CURIAM.

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

On Appellant’s Motion for Rehearing.

LATTIMORE, J.

Appellant files a motion for rehearing, and insists that we should not have affirmed this case, and that we were in error in holding the alleged misconduct of the jury to be of such-character as that the act of the trial judge in refusing the motion for new trial should be upheld. We have again carefully gone over the motion for new trial and the testimony heard in support thereof. Complaint of this matter constitutes the only bill of exceptions in the record. Juror Chaffin testified to facts which would have supported a conclusion that there was misconduct of the jury; but the other eleven jurors gave testimony which seems incompatible with that of Mr. Chaffin, and fully justified the learned trial judge in concluding Chaffin’s testimony untrue. The two things claimed as misconduct by appellant, and supported by the testimony of Chaffin, were a discussion in the jury room of the fact that appellant was one of the worst bootleggers in the Itasca community, and also that he was a bad man to fight and had a fight with the sheriff, and the remark that he attributes to some juror that he had heard of appellant drinking. After introducing Chaf-fin on the hearing of the' motion for new trial, appellant put Juror Hamilton on the stand, who stated that upon the retirement of the jury they stood three for acquittal and nine for conviction; the three for acquittal being himself, Chaffin, and a Mr. Horn. Hamilton said that after the fourth ballot the jury stood eleven to one for conviction, and after it was in this condition he and a juror named Braziel had a conversation ■ in the presence of Chaffin in which it was said that appellant had a fight with the sheriff, and Braziel said something about appellant being bad to fight. None of the other jurors heard this discussion between Chaffin, Hamilton, and Braziel, each of whom had already voted that appellant was guilty. Mr. Horn was the only juror at that time who was for acquittal. Each of the other jurors testified, including Mr. Horn, and all of them swore that they' heard no one refer to the fact in the jury room that appellant was a bootlegger, or the worst bootlegger in the Itasca community. Juror Horn testified that he did not hear any one say appellant was a tough character, or that he was one of the worst bootleggers in the Itasca community, or that he was a bad man and a fighter, or had had any fight with the sheriff. In this condition of the record, the conclusion is irresistible that what was said concerning appellant’s fight was between three jurors who had already made up their minds and voted for conviction; that the juror who was for acquittal heard no such discussion and was not influenced thereby; and that the preponderance of the testimony was so overwhelming against the proposition that there was any discussion. in the jury room of appellant being a bootlegger, etc., as to fully justify the learned trial judge in his refusal of the motion for new trial.

We are of opinion that the judgment of affirmance herein was correct, and the motion for rehearing will be overruled.  