
    McKINZIE v. STATE.
    (No. 8194.)
    (Court of Criminal Appeals of Texas.
    March 26, 1924.)
    1. Criminal law &wkey;>l 128(4) — Affidavit not shown to have been before trial court not considered in determining correctness of refusal of new trial.
    Where the record does not show that a juror’s, affidavit attached to appeal papers was offered in evidence, or considered by the trial court, it will not be considered on appeal in determining the correctness of the tidal court’s refusal of a new trial.
    2. Criminal law <&wkey;957(5) — Juror’s statement during deliberation concerning defendant’s prior court record held not to require new trial.
    Testimony that a juror stated during their deliberations that it seemed to him that defendant had been in trouble in the courts before, not shown to have been prejudicial to defendant, held not to require a new trial after a conviction for selling intoxicating liquor.
    
      ^nsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      3. Intoxication liquors <S=»236(II) — Evidence held to support conviction for selling.
    Conflicting evidence as to a sale by defendant of intoxicating liquor, held to support a conviction for selling.
    <gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Anderson County; W. R. Bishop, Judge.
    Jack McKinzie was convicted of .selling intoxicating liquor, and appeals.
    Affirmed.
    Campbell, Greenwood & Barton, of Palestine, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Anderson county for selling intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Appellant seeks a reversal for two reasons: One, the refusal of a new trial sought upon the ground of misconduct of the jury in that they received testimony after their retirement. An affidavit of one juror is attached to the motion for new trial. Controversy of this proposition is shown by the fact that oral evidence was heard against and for the motion when same was presented to the learned trial judge for his action. It nowhere appears that the affidavit mentioned was offered in evidence or considered by the court in arriving at his judgment overruling the motion. We have concluded that under such state of the record this court will determine the correctness of the trial court’s refusal of the new trial solely from consideration of the oral testimony heard. Rumfield v. State (No. 8034) 262 S. W. -, opinion handed down by this court March 5, 1924.

Stanland, the juror who made the affidavit, gave oral .testimony in which he said that, while the jury were out, Juror Shandley stated to him that it seemed to him that appellant had been in trouble in the courts before, which remark Stanland said did not influence him in finding a verdict of guilty. Juror Shandley testified that during the "deliberation of the jury he remarked to Stan-land that it seemed to him that appellant had been in trouble with the courts before. Juror Cotton testified that when the jury stood ten to two — Stanland and another being for acquittal — he heard Shandley remark, as near as he could recall it, that appellant had been in the courts before. He first said that Shandley stated, “Eor this whisky business,” but later admitted that he was not sure that Shandley said anything about whisky. No other juror testified. No one said that he or any other juror was affected by what was said by Shandley, or that it was discussed or considered by any of them.

Under subdivision 7, art. 837, Yernon’s C. C. P., it is stated as a general rule that misconduct of the jury will not be ground for new trial unless same be shown to be such as has affected the fairness and impartiality of same. Ray v. State, 35 Tex. Cr. R. 354, 33 S. W. 869, is there cited as approving the holding in Parker v. State (Tex. Cr. App.) 30 S. W. 553, Mason v. State (Tex. App.) 16 S. W. 766, and Williams v. State, 33 Tex. Cr. R. 128, 25 S. W. 629, 28 S. W. 958, 47 Am. St. Rep. 21, which authorities hold that reference to other crimes committed by the accused, and the fact that a juror told his fellows that he had information that the accused had been in the penitentiary, would not call for the granting of a new trial in the absence of some showing of injury. In Morrison v. State, 39 Tex. Cr. R. 519, 47 S. W. 369, it is held that the mere statement, by one juror to his companions, that the accused had been in the penitentiary, would not justify 'a new trial in the absence of a showing of injury. See, also Tinker v. State, 58 Tex. Cr. R. 321, 125 S. W. 890, and Hernandez v. State, 60 Tex. Cr. R. 30, 129 S. W. 1109, and other authorities cited by Mr. Vernon under said article. Referring to the statement of Juror Shandley in the jury room, it was merely that “it seemed to him that appellant had been in trouble.” He stated no fact, nor is it made to appear that same was heard by any of the other jurors than those who testified, neither of whom affirms that the remark had any weight with him whatsoever. On the contrary, as stated above, Juror Stanland averred that he did not consider said remark to have anything to do with this case and that it did not influence him at all.

We have held that, if there be a conflict in the -testimony regarding matters of this kind, the finding of the trial judge, if supported, would have to be shown to be such as to constitute an abuse of his discretion, in order to secure a favorable review at the hands 'of this court. White v. State, 82 Tex. Cr. R. 286, 199 S. W. 1117.

Appellant cites Howell v. State, 94 Tex. Cr. R. 563, 252 S. W. 540, and Samples v. State, 94 Tex. Cr. R. 513, 252 S. W. 543; but in our opinion the facts of each are so unlike those before us in this case, as to make them inapplicable. Also Favro v. State (Tex. Cr. App.) 59 S. W. 886. In the case last mentioned the matters illegally put before the jury were discussed by them, and it was clearly shown that the verdict was influenced thereby. Gothard v. State, 94 Tex. Cr. R. 533, and Burns v. State, 94 Tex. Cr. R. 538, each in 252 S. W. 508, do not relate to the same or analogous principles. In Brackeen v. State (No. 8068) 258 S. W. 818, opinion handed down February 20, 1924, the rule laid down in Tate v. State, 38 Tex. Cr. R. 261, 42 S. W. 595, was followed, viz.: That when the main issue in the case was the character for truth and veracity of the state witness upon whose testimony alone a cony viction was sought, and qne juror affirmed to his fellows that he knew the reputation of said witness and that it was good, this would be reversible error.

The other ground of appellant’s complaint is that the evidence does not support the verdict. We are unable to assent to the soundness of this contention. The state witness swore positively to the guilt of appellant in making the sale of whisky. Appellant denied it. He put on five witnesses who said that the reputation for truth .and veracity of the state witness was bad. One of these witnesses made appellant’s recognizance on appeal for him. Another said that he had known state witness only a year and had not heard his reputation discussed; another, that he had heard it discussed no further than that witness got drunlk, but later, stated that he had heard Mr. Austin and Mr. Johnson discussing his reputation for telling the truth. The record reveals that appellant on cross-examination said that he could not remember how many times hg had had whisky in his possession during the six months preceding his trial; his only recollection of where he got any of it being that he got it from “a human.” The matter of the veracity of witnesses is for the jury, and when the-evidence, if true, makes out a clear case and there be nothing else to affect the fairness of the conclusion reached by the jury than the character of attack that appears in this record, this court will not deem itself warranted in setting aside the verdict of the jury.

Finding no error in the record,, the judgment will be affirmed.  