
    BAYLESS v. STATE.
    (No. 10401.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1926.)
    1. Crimina! law <S=I i661/2(12) — Remarks of presiding judge, conveying opinion of case to •jury, if calculated to harm accused, are prejudicial (Code Cr. Proo. 1925, arts. 658, 707, 768).
    Remarks by presiding judge, calculated to convey opinion of ease to jury, in violation of Code Cr. Proc. 1925, arts. 658, 707, and 768, are prejudicial, if calculated to harm accused, unless contrary appears from record.
    2. Criminal law <§=31174(1) — Court’s remark ■ that eleven men were more apt to be right than one held not prejudicial, in view of verdict (Code Cr. Proo. 1925, arts. 658, 707, 768).
    Remark of trial judge to jury, in violation of Code Cr. Proc. 1925, arts. 658, 707, and 768, after being informed they were divided eleven to one only as to amount of punishment, that eleven men were more apt to be right than one, and that they should agree on verdict, held not prejudicial, in view of jury’s final agreement on minimum punishment.
    Appeal from District Court, Gray County; W. R. Ewing, Judge.
    Sam Bayless was convicted of unlawful manufacture of intoxicating liquor, and he aijpeals.
    Affirmed.
    Sam D. Stinson, State’s Atty., of Austin, and Roht. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The evidence is quite sufficient to sustain the conviction. After deliberating several hours, the jury came into open court and reported that they were unanimous in their agreement upon the appellant’s guilt, but that they were divided, eleven to one, on the amount of punishment. The court then remarked to the jury “that eleven men were more apt to be right than any one man, and that they should retire and agree upon a verdict.” To this remark an exception was reserved.

The judge presiding at the trial is forbidden by statute to “make any remark calculated to convey to the jury his opinion of the case.” Article 707, C. C. P. 1925. Somewhat similar restrictions are placed upon the court by articles 658 and 768, C. C. P. 1925. Transgressions of these limitations, when calculated to harm the accused, have been uniformly held to be prejudicial, unless the contrary appears from the record. See English v. State, 85 Tex. Cr. R. 450, 213 S. W. 632; also Vernon’s Tex. C. C. P. vol. 2, p. 698, and notes on succeeding pages. Apparently the record in the present case demonstrates that the making of the improper remark did not operate to the prejudice of the accused. It is made manifest by their report to the court that the jury was unanimous in its finding of guilt, but were divided alone upon the penalty. It follows that either one juror or eleven jurors favored a higher penalty than the minimum. The final agreement upon the minimum is incompatible with the theory of injury.

The judgment is affirmed.  