
    GRAHAM v. STATE.
    (No. 10277.)
    (Court of Criminal Appeals of Texas.
    June 23, 1926.
    On Reinstatement of Appeal. Oct. 20, 1926.)
    I. Criminal law (&wkey;(Q23(9).
    Appeal from conviction of crime will be dismissed for want of jurisdiction, where record discloses no sentence.
    2. Criminal law <S=j925'/2(3).
    That jurors favoring acquittal voted, for conviction upon another juror’s statements of fact, not in evidence and based on his own experience, held to require new trial.
    Commissioners’Deeision.
    Appeal from District Court, Cherokee County; C. A. Hodges, Judge.
    Hugh Graham was convicted for unlawfully possessing equipment for the purpose of manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded*
    Perkins & Perkins, of Rusk, and Nat Patton and Adams & Adams, all of Crockett, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted in the district court of Cherokee county for unlawfully possessing equipment for the purpose of manufacturing intoxicating liquor, and his punishment was assessed at one year in the penitentiary.

The record fails to disclose any sentence of the court in this case, in the absence of which this court is without jurisdiction or authority to consider the appeal. Article 769 (856), C. C. P.; Branch’s Ann. P. C. § 667; Wooldridge v. State, 61 Tex. Cr. R. 324, 135 S. W. 124; Carrell v. State, 83 Tex. Cr. R. 536, 204 S. W. 334; Thompkins v. State, 87 Tex. Cr. R. 502, 222 S. W. 1103, 224 S. W. 687.

For the reason above mentioned, this appeal is ordered dismissed.

On Reinstatement of Appeal.

This case was dismissed at the last term of this court for the reason that the record failed to disclose the sentence of the appellant. The record has been completed, the order of dismissal set aside, and the appeal considered on its merits.

The only question in the record which challenges our attention is the alleged misconduct of the jury in receiving other evidence than that introduced upon the trial, while deliberating upon the case. The record discloses that the sheriff, together with his assistants, searched the residence of the appellant and found in one of the rooms what they denominated a still, coil, and a keg, and out in the yard they found a barrel containing mash. The record further discloses that the residence which appellant had rented from a local mill company consisted of four rooms, and that the alleged still, coil, and keg, which were found by the sheriff, were in a side or back room. The appellant defended upon the ground that the equipment in question did not belong to him, that he had exercised no control over the same, and that it was in tibe house at the time that he rented it from the mill company; that said equipment was left in the room by a former occupant; and that he had only rented the two front rooms and had nothing to do with and exercised no control oyer the room where the equipment was found. In support of this contention, the appellant introduced evidence to this effect.

It is shown by the record that after the jury had retired to consider the verdict and had taken the first ballot, standing six for conviction nnd six for acquittal, the latter six contending that the evidence was insufficient to warrant a conviction in that it failed to show that the appellant was in possession ■of that portion of the house in which the equipment w‘as found, then the juror, Line-ville, stated to the jurors who favored an acquittal that he had worked for sawmill companies and had attended to the renting of houses for said companies; that his experi-encé in such business covered a period of 15 years; and that he knew it to be a fact that it was customary with such companies, when they rented a house, to rent the whole of it, and, if there was any subrenting to be done, the man who rented the house would do that himself. The juror Edwards then stated that he had a brother who lived in Dallas and who rented a house, and that was the way he rented it. The record further discloses that after these statements were made, one of the jurors who had previously favored an acquittal voted for conviction, the jury then standing seven for conviction and five for acquittal, and that this alignment remained unchanged all that evening and until the following morning. According to the record, the jurors, Lineville and Edwards, continued to make the arguments indicated above, and, on the following morning before another ballot was taken, Lineville stated and insisted that there was no use to argue further as to whether the appellant was in possession of all or a part of the house, since he knew as to that from his own experience. Following the renewal of such arguments and statements, the five jurors who were for acquittal voted for conviction. Some of the jurors who were for acquittal stated that they were without experience as to the custom and manner of renting houses and relied on what the jurors, .Lineville and Edwards, said relative to such matters. The trial court heard testimony from all twelve of the jurors, and the jurors, Lineville and Edwards, testified in corroboration of the testimony, as set out above, concerning their statements to the jurors who favored an acquittal. There was no contradictory evidence from any juror on this issue. This being the case, there is nothing left for this court to do but to hold, under the statutes and authorities of this state, that the trial court was in error in overruling the appellant’s motion for a new trial based upon the misconduct of the jury. Brewer v. State, 97 Tex. Cr. R. 501, 262 S. W. 766; Hanks v. State, 99 Tex. Cr. R. 218, 269 S. W. 111; Hughes v. State, 101 Tex. Cr. R. 82, 274 S. W. 151; Brown v. State, 101 Tex. Cr. R. 689, 276 S. W. 929.

For the error above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

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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