In view of the State's motion we have again reviewed the evidence on the issues raised by the motion for new trial and the findings of fact by the very able trial judge. He realized *Page 413 the seriousness of the question raised by the substantial averments in the motion that, while the jury was divided as to the penalty, some jurors stated in the jury room that appellant's mother had been making bootleg liquor in the same house where appellant lived; that appellant was a bootlegger and had been practically raised in an atmosphere of crime; that the appellant's mother was a bootlegger; and some juror said he had bought bootleg whisky from her. The trial court says in his findings that:
"This allegation, together with the evidence adduced in support thereof, presents in the trial court's opinion the most serious point raised in said motion. I recognize this to be a close question and have given the matter very careful consideration."
It is to be regretted that more of our trial judges do not follow the example here found of advising this court of their findings when issues of fact are raised in motions for new trials. We are aided greatly by such finding, and are loath to disagree with the trial judge as to what the evidence established or his conclusions as to the effect thereof. However, under facts revealed upon the hearing of the motion for new trial, we are inclined to think the averments in the motion heretofore alluded to were sustained. Under the circumstances, we would be unwarranted in permitting a death penalty to stand where the very matters complained of as occurring in the jury room were without support in the evidence and were advanced by some juror or jurors upon the very issue of what penalty should be assessed, and at a time when seven jurors were for the death penalty and the other five for various terms of years. Something caused the five to come over to the seven. Speculation under the facts here present should not be indulged.
The State relies largely upon Henderson v. State,132 Tex. Crim. 596, 106 S.W.2d 291, in support of its motion for rehearing. The opinion in that case reveals some difference in the views of the members of the court. Some of the arguments used by the jurors in the present case are similar to those employed in the Henderson case, and as to such arguments that case might support the State's contention, but it is not upon that point the reversal here is predicated. The majority of the court in the Henderson case regarded the controversy among the jurors as purely argumentative and predicated in part upon an incident coming to the juror's attention, with which incident Henderson had no connection. Here, the things said in the jury *Page 414 room upon which this reversal is based were statements by jurors which directly affected the appellant and his past conduct about which no evidence was in the record.
The State requests a clarification of the last paragraph of the original opinion in which reference is made to the case of Rodriguez v. State, 109 Tex.Crim. R., 4 S.W.2d 52. It was our purpose to direct attention to said case for guidance of the court in the event, upon another trial, the evidence raised the issue of an accidental discharge of the pistol while handled by appellant in such a manner that there was no apparent danger of causing death of the deceased or some other person.
The State's motion for rehearing is overruled.