
    POLLOCK v. STATE.
    (No. 9812.)
    (Court of Criminal Appeals of Texas.
    Jan. 27, 1926.
    Rehearing Denied Feb. 24, 1926.)
    1. Criminal law <§=*854(7)— Misconduct of jury not shown by proof that they separated and went into hall, in ahsence of showing of conversation with other persons.
    Misconduct of jury was not shown by proof that, while judge and county attorney were out of courtroom, jurors divided and went into hall, in absence of showing of conversation with other persons.
    2. Criminal law <§=>956(12).
    Party alleging misconduct of jury has burden to show it.
    Commissioners’ Decision.
    Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.
    Bob Pollock was convicted of burglary, and he appeals.
    Affirmed.
    Albert R. Young, of Corsicana, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is burglary, the punishment is three years in the penitentiary.

There are no' bills of exception contained in the record. In his motion for new trial appellant seeks to allege misconduct of the jury. Pie attaches the affidavit of B. J. Woods to his motion, which affidavit states in effect that the jury, while the judge and the county attorney were out of the courtroom, “divided, and some of them went out into the hall, and some of them went into an anteroom adjoining the courtroom, and some of them remained in their seats; that the hall is in front of the courtroom and about a distance of 75 feet from the jury box, and that there were many people walking around in the hall and in the courtroom. Affiant says he did not know any of the men who walked out into the hall, and did not think there were over two or three that walked out there, but that several of the jury walked around in the courtroom.”

In the absence of any further showing that the jurors conversed with any person or that any person conversed with them, we do not think that the affidavit is sufficient to show misconduct. A party alleging misconduct of the jury has the burden on him to show it, and we think that this affidavit falls short of discharging this burden.

In addition to what has been said, we note that tbe trial court certifies in overruling tbe motion for a new trial that he finds as a fact that the jurors did not separate during the trial of the case.

There is no other matter even suggested in the motion for a new trial that could be considered by us in„the absence of a bill of exceptions taken on the trial of the case and properly preserving the matter complained of.

Finding po errors in the record, and believing that the facts are sufficient to support the verdict, the judgment is in all things affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by tbe Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

A re-examination of the record in the light of the appellant’s motion for rehearing leaves us of the opinion that on the original hearing the proper disposition was made of the appeal.

The motion is overruled.  