
    Allen Ellis v. The State.
    
      No. 511.
    
    
      Decided June 23.
    
    Rape — New Trial — Misconduct of Jury Receiving Other Testimony. — One of the statutory grounds tor a new trial is where the jury, after having retired to deliberate upon a case, have received other testimony. Code Crim. Proc., art. 777, subdiv. 7. Held, on a trial for rape, where one of the jurors told his fellows, after their retirement, who were divided six and six as to conviction and acquittal, “that three years before the defendant went into the bedroom of one of his neighbors, where his wife was, and that he (the juror) heard the husband tell defendant that he would kill him if he did not leave the country,” which defendant did; after this statement-a verdict for conviction was unanimous. The case comes clearly within the statutory rule, and a new trial should have been granted.
    Appeal from the District Court of Frio. Tried below before Hon. M. T. Lowe.
    Appellant was indicted in Zavalla County for tbe rape of one Dolores Mata. By agreement of parties the venue was changed to Frio County, because, on account of sparseness of population, a jury could not be obtained in Zavalla to try tbe case. At bis trial in Frio County be was convicted, bis punishment being assessed at five years’ imprisonment in tbe penitentiary.
    In view of tbe disposition made of tbe appeal, a statement of tbe case becomes unnecessary.
    J. N. Spann and John T. Bivins, for appellant.
    
      R. L. Henry, Assistant Attorney-General, for tbe State.
   SIMKINS, Judge.

Appellant was convicted of rape, and bis punishment was assessed at five years. In bis motion for a new trial appellant says, that after tbe jury had retired to consider of their verdict they received other testimony from one "W. T. Cude, a juror, which operated injuriously to appellant’s rights.

It appears by tbe voluntary affidavit of said Cude, that on tbe first ballot tbe jury stood ten for acquittal and two for conviction. That after discussing the character of defendant tbe jury stood six and six. That thereupon be (tbe juror) asked whether it would be right to state what be personally knew of defendant’s character; and being assured there was nothing wrong in stating it, be informed tbe jury that three years before defendant went into tbe bedroom of one of bis neighbors, where bis wife was, and be (tbe juror) beard her husband tell defendant if be did not leave tbe county be would kill him; that defendant left tbe neighborhood. After this statement, with further discussion, tbe whole twelve voted for conviction. This affidavit is in no way traversed or denied. It needs no comment to show its importance and prejudicial tendency, and therefore comes clearly within tbe seventh subdivision of article 777 of tbe Code of Criminal Procedure, defining tbe grounds upon which a new trial should be granted.

Tbe judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.  