
    TAYLOR v. STATE.
    (No. 11020.)
    Court of Criminal Appeals of Texas.
    Nov. 2, 1927.
    1. Criminal, law &wkey;857(2)— Jurors’ mention before final verdict of defendant’s former conviction for similar offense held reversible error (Code Cr. Proc. 1925, art. 753, subd. 7).
    In prosecution for driving automobile on public highway while intoxicated, mention, before jurors had decided on punishment, of fact that, defendant had been given suspended sentence for same offense in another and different case, not proved at trial, constituted reversible error, in view of Code Cr. Proc. 1925, art. 753, subd. 7, requiring new trials in cases of felony to be granted, where jury, after having retired, has received other testimony.
    2. Criminal law t&wkey;9251/2 (3)— Raising jurors’ discussion whether defendant had formerly been convicted of similar offense on motion for new trial held proper (Code Cr. Proc. 1925, art. 753, subd. 7).
    In prosecution for driving automobile on public highway while intoxicated, in view of Code Cr. Proc. 1925, art. 753, subd. 7, requiring new trials in felony eases for jury’s receiving other testimony after retiring to deliberate on case raising on motion for new trial, fact that jurors had discussed, prior to reaching final verdict, alleged fact that defendant had been given suspended sentence for same offense in another and different case, not proved at trial, was proper.
    3. Criminal law &wkey;»!086(l4) — Where transcript does not show overruling exception for indictment’s failure to designate highway on which defendant was alieged to have driven automobile when intoxicated, such matter may not be considered on appeal.
    Where transcript did not contain order overruling exception to indictment for driving automobile while drunk on public highway for its failure to give name of particular highway, or to designate it, such question cannot be considered on appeal.
    Commissioners’ Decision.
    Appeal from District Court, Polk County; J. L. Manry, Judge.
    Elzie Taylor was convicted of driving an automobile on a public highway while intoxicated, and he appeals.
    Reversed and remanded.
    P. R. Rowe and P. R. Rowe, Jr., both of Livingston, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MARTIN, J.

Appellant was convicted of the offense of driving a car on a public highway while intoxicated, and his punishment assessed at a $60 fine and 15 days’ confinement in the county jail.

It is made to appear in the record that the appellant had,’ prior to the instant case, been given a suspended sentence for the same offense in another and different case, This was not, however, proven in the main trial of the case. It was alleged in a motion for new trial that the jurors had mentioned and discussed this fact in the jury room prior to the rendition of their verdict. Pour jurors testified on this point; eight of the jurors not testifying. One of the jurors makes it uncertain as to whether it was before they voted him guilty, while one testifies that it was before the verdict of guilty was rendered; the jury at the time standing either ten to two or eleven to one. The other two say it was mentioned about his having a suspended sentence after the verdict of guilty, but before the punishment was agreed upon. After it was mentioned, the jurors all agreed he was guilty, and he received as punishment more than the minimum.

The record shows' that this matter was placed before the jury before a final verdict was rendered; thus showing probable injury. The matter was manifestly harmful, as it did show that appellant had been guilty of the same offense before. Article 753, subd. 7, O. O. P., requires that new trials in cases of felony shall be granted where the jury, after having retired to deliberate upon a case, has received other testimony. This matter was mentioned at a critical time in the deliberations of the jury, when, according to the testimony of the juror Abercrombie, the jurors were unable to agree as to thp guilt of the appellant, and, after such statement was made, the jury did immediately agree upon his guilt. This proposition of law has been fully discussed, and the following authorities will illustrate the rule of law applicable in cases of this character: Taylor v. State, 101 Tex. Cr. R. 201, 274 S. W. 622; McDougal v. State, 81 Tex. Cr. R. 179, 194 S. W. 944, L. R. A. 1917E, 930; Mitchell v. State, 36 Tex. Cr. R. 318, 33 S. W. 367, 36 S. W. 456; Hardiman v. State (Tex. Cr. App.) 53 S. W. 121; Favro v. State (Tex. Cr. App.) 59 S. W. 886; Blocker v. State (Tex. Cr. App.) 61 S. W. 391; Lankster v. State, 43 Tex. Cr. R. 299, 65 S. W. 373; Hughes v. State, 43 Tex. Cr. R. 511, 67 S. W. 105; Hughes v. State, 44 Tex. Cr. R. 296, 70 S. W. 746; Darter v. State, 39 Tex. Cr. R. 46, 44 S. W. 850; Hopkins v. State (Tex. Cr. App.) 68 S. W. 986 (defendant pleaded guilty); Hefner v. State, 44 Tex. Cr. R. 441, 71 S. W. 964; Horn v. State, 50 Tex. Cr. R. 404, 97 S. W. 822; Casey v. State, 51 Tes. Cr. R. 433, 102 S. W. 725.

The juror who mentioned this must have intended either that it should break the deadlock which then existed or should influence the jury in assessing the punishment. That it may haye done so is apparent. The question was properly raised on motion for new trial, and the evidence is uncontroverted, And we think the matter presents such material error as requires a reversal of the case.

The indictment charged the appellant with driving 'an automobile upon a public highway in Polk county while intoxicated, without mentioning the particular highway. An exception to said .indictment alleging it was defective, because the name of the particular highway on which the offense was committed was not named or in any way designated, was presented. No order overruling this appears in the transcript. We cannot therefore pass on this point.

The judgment is 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. , 
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