In his motion for rehearing appellant calls our attention to the fact that the testimony adduced upon the hearing of the motion for new trial is properly before this court in a bill of exception. Relative to alleged misconduct on the part of the jury, it is shown that four of the jurors voted for conviction from the time they retired to deliberate upon the case. Notwithstanding the uncontroverted evidence showed that appellant treated Henry Scott, one juror expressed the opinion that the proof on the point was not sufficient and also declared that if appellant was in fact a chiropractor, he should not be convicted. There was a telephone directory in the jury room, which the juror consulted for the purpose of determining whether the appellant was listed as a chiropractor. Finding that he had not been so listed, he agreed to a verdict of guilty. In qualifying the bill of exception, the court stated: "Such list was in evidence and that it did not show the name of C. L. Hawkins as a chiropractor." Looking to the bill as qualified, we are unable to reach the conclusion that the trial judge abused his discretion in overruling the motion for new trial. It might be added that we doubt whether, under the circumstances shown, the juror could impeach his verdict in the manner here shown.
We are unable to agree with the appellant's contention that the evidence is insufficient to support the conviction.
The motion for rehearing is overruled.
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. *Page 419