
    L. M. Dowd v. The State.
    No. 4413.
    Decided February 17, 1909.
    Manslaughter—Misconduct of Jury—Bill of Exceptions.
    Where the motion for new trial alleging misconduct of the jury was sworn to, but there was no evidence in the record supporting the affidavit; and the judgment of the court recited that the court heard the evidence on the motion which was overruled, and there was no bill of exceptions in the record, the judgment is affirmed.
    Appeal from the District Court of Montague. Tried below before the Hon. Clem B. Potter.
    Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary.
    The opinion states the case.
    No brief on file for appellant.
    
      F. J. McCord, Assistant Attorney-General, for the State.
   BROOKS, Judge.

Appellant was convicted of manslaughter, and his punishment assessed at two years confinement in the penitentiary.

This is the second appeal of this case. See former opinion in volume 52 Texas Crim. Rep. 563.

In appellant’s motion for a new trial he complains of the misconduct of the jury in that after the jury retired to consider their verdict, one of them talked with the county judge of the county. In the course of said conversation, the county judge remarked to the said juror Lyon that the defendant (meaning this defendant) was guilty of murder. That said judge did not know until said juror was leaving his office, that he was a juror in the case. That the juror was absent from the others, and defendant says that such separation was not had by his knowledge or consent, nor by the knowledge or consent of his counsel. This motion is sworn to by the defendant, but we find no evidence in the record to support the affidavit; but the judgment of the court recites that the court heard the evidence on the motion and that same should be overruled. This is the only matter complained of in the motion for a new trial. There is no bill of exceptions in the record, and the evidence clearly supports the verdict, and the judgment is in all things affirmed.

Affirmed.  