On the proposition that there is a conflict between our opinion in this case, and in what we said in Rees v. State,278 S.W. 451, and that the latter case is right — appellant asks leave to file a second motion for rehearing. We find no such conflict. In the Rees case, supra, we said in the opinion that there was no denial of the alleged misconduct of the jury. In the instant case we say in the opinion that one juror on the hearing of the motion for new trial, affirmed misconduct; but many other jurors denied it. In the Rees case no issue was made of conflicting testimony; in the case before us there was such conflict.
The duty of this court to reverse the action of the trial court in refusing a motion for new trial where there was testimony of material misconduct which was not denied, was plain in the Rees case, but the application of the same duty as to the action of the trial court in the instant case, where one witness testified to misconduct and the remainder denied it, calls for an affirmance on our part.
The application for leave to file a second motion for rehearing will be denied.
Motion denied. *Page 322