
    HOLLINGSWORTH v. STATE.
    (No. 7652.)
    (Court of Criminal Appeals of Texas.
    April 18, 1923.)
    1. Criminal law <&wkey;925'/2(3) — Refusal of new trial reversible error where juror stated' during deliberation that defendianit’s brothers were' engaged in same illegal business as that charged.
    Where a juror testified, on the hearing of a motion for new trial after a conviction of transporting intoxicating liquor, that another juror said, in the presence of the rest in the jury room, that he knew defendant’s brothers, and that they were all in the same business, refusal to grant a new trial, as required by Vernon’s Ann. Code Cr. Proe. 1916, art. 837, subd. 7, where the jury receives other testimony after retiring to deliberate, held reversible error.
    2. Criminal law i&wkey;889 — Jury should ho required to correct verdict of guilty as charged to make it conform to charge submitting only one of three counts.
    Where the charge submitted but one count of an indictment containing three counts charging separate, kindred offenses, the jury should have been required to correct their verdict of guilty “as charged in the indictment” so as to make it conform to the charge, and ascertain the count on which they found accused guilty.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Ed Hollingsworth was convicted of transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    
      Simpson, Moore &' Parker, of Fort Worth, for appellant.
    R. K. Hanger, Cr. Dist. Atty., and W. H. Tolbert and J. B. Mastin, Asst. Cr. Dist. Attys., all of Fort Worth, and R. G. Storey, Asst. Atty. Gen., for the 'State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Tarrant bounty of transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary. . .

The case is briefed by the state under a misapprehension that Oh the hearing of the motion for new trial two jurors testified on the issue of misconduct of the jury, contradicting each other,' leaving said issue in that condition in which the decision of the trial court on a contested issue of fact would be upheld by us. In fact, the record reveals that only one juror testified on said hearing, ¡and his testimony was entirely favorable to tile contention of appellant. Appellant was convicted of the offense of transporting intoxicating liquor. On said hearing of the motion for new trial a juror introduced by him was asked the question if he heard any other juror make a statement in the jury room in the presence of the other jurors,'in substance, that he knew appellant’s brothers and that they had been engaged in the same business, to which he answered: “Yes, sir; Mr. Guess said, ‘Well, I know him, and that is what they all do; they are all in the same business.’ ” Mr. Guess seems to have been foreman of the jury. The juror who gave this testimony said that he asked Mr. Guess, if he could convince him, the juror, that they were all professionals at that game, he would vote guilty, to which Mr. Guess made no reply. Thereafter the jury agreed on a verdict of guilty.

There was no controversy over the fact that this took place. The state did not traverse the allegations of the motion for new trial, nor introduce other jurors to combat the testimony above referred to. It is thus made to appear that the law as declared in subdivision 7, art. 837, Vernon’s O. C. P., wherein it is stated that a new trial should be granted where the jury, after having retired to deliberate on a case, received other testimony, makes it obligatory on us to reverse this case for the refusal of such new trial. Wie cannot escape the conclusion that, after the jury had retired to deliberate on the case,' a juror from his own individual knowledge obtained before he became such juror, gave important testimony.

Inasmuch as the case must be reversed, attention is called to the fact that the indictment contained three counts charging .separate, kindred offenses. The charge submitted but one 'count. The verdict of' the- jury was guilty “as charged in the indictment.” The jury should have been re^ quired to correct their verdict so as to make it conform to the charge of the court and to ascertain the count under which they found the accused guilty. The case' is different from one in which all counts were submitted and a general verdict returned referable to any count. ■ "

For the error mentioned, the judgment will be reversed, and the cause remanded. 
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