
    BRACKEEN v. STATE.
    (No. 8068.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1924.)
    1. Crimina! law <&wkey;369(6) — Defendant’s testimony blaming son justified state’s inquiry about making whisky when boy was home.
    Where defendant testified that his boy “done every bit of the whisky that was sold,” that he had nothing to do with it, and that his boy pleaded guilty and was in the penitentiary, the state’s inquiry in reference to making liquor when his boy was home constituted no error.
    2. Criminal law <&wkey;925'/2 (3)— Remark of juryman as to truthfulness of state’s witness to evenly divided jury required a new trial.
    Where conviction for selling whisky rested almost entirely on the testimony of one witness and testimony as to his truthfulness was conflicting, the remark of a juryman after retirement and while the jury was about evenly divided that he knew state’s witness personally and he was truthful, constituted receipt of testimony other than from witnesses, and required a new trial.
    Appeal from District Court, Hunt County; Geo. B. Hall, Judge.
    Bob Brackeen was convicted of selling intoxicating liquor, and appeals.
    Reversed and remanded.
    Stinson & lJeak, of Greenville, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin,, for the State.
   BATTIMORE, J.

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

Appellant took the stand as a witness in his own behalf, and on direct examination by his counsel stated that his boy “dona every bit of the wnisky that was sold”; that he did not have anything to do with it; that his boy pleaded guilty in October last, and he is noW in the penitentiary. We think, under this condition of the record, the action of the state in asking him in reference to the making of liquor at a time when his boy was at home constituted no error.

The conviction in this case rests almost entirely upon the testimony of one Mabry. The accused introduced a number of witnesses, who testified that the reputation of Mabry for truth and veracity was bad, and in its rebuttal the state introduced one witness, who testified that Mabry’s reputation in that regard was good. One of the grounds of the motion for new trial was misconduct of the jury in that they received testimony other than that which, came from witnesses during the trial. It was developed' without apparent contradiction that the Jury was about evenly divided after retirement, and -that during the discussion one of the jurors told his fellews that he personally knew State Witness Mabry, and that, while he drank whisky, still he was a truthful man. Authorities need not be cited to sustain the proposition that this was receiving testimony other than from witnesses, and was sufficient ground for a new trial. The other errors complained of will likely not occur upon another trial.

For the error mentioned, the judgment of the trial court is reversed, and the cause remanded. 
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