On Rehearing. In the opinion, in considering the question of misconduct of the jury, we thought, and so stated, that the evidence was too indefinite to show misconduct.
The jury stood eleven to one on an issue then being considered and the testimony given by one of the parties. The one juror wanting to have the evidence reproduced or reread made no request to the court to have the desired evidence reread to the jury, but simply made a request to the jury in the jury room that the evidence of the witness be reread to the jury.
The evidence of the juryman on question and answer on what occurred is as follows, the juror having said he wanted the evidence reproduced:
"Q. You made that request to the foreman? A. Yes, sir. Not directly to him, I guess, but I asked about —
"Q. What was said? A. They said it would be necessary for it to be transcribed and it likely would be pretty late that night before it could be done and get that information before the jury. They said it would take until about 12 o'clock. As I remember it, this was on Saturday and they said it would take until about 12 o'clock that night to get it transcribed.
"Q. Was anything said about the court wouldn't hold that long? A. I was told that I would probably receive a reprimand from the court for not having paid more strict attention to the evidence as it was presented if I requested that the evidence be sent in."
The juror testified that he did not know that the jurors had a right, on a request to the court, to have the stenographer's notes reread to him, and that had he known, he thinks he would have insisted on having it done.
After the above discussion the juror agreed with the others on the verdict.
Appellant complains that the jury alluded to, or stated as a fact, Kinsey was a poor man and had put up his home, and that Arnold was a more successful business man than Kinsey; that there was no evidence to support the statement, and that the reference to the matter stated constituted misconduct and reversible error.
On the trial Kinsey testified Arnold asked him if he would "put up some kind of security on those notes"; that with a little additional security he would be enabled to borrow money on them. Kinsey said: "I told him that I didn't have anything to put up except a home."
On the hearing on the motion for a new trial on account of misconduct of the jury, juror Sam Nelson testified for appellant as to what occurred in the jury room:
"Q. Whether or not this statement, or the substance of it, was made by any of the jurors in the discussion as to their verdict, after the first ballot was made, to this effect: `That Mr. Arnold was a shrewd business man, much smarter than Al Kinsey.' Do you remember that statement was made. A. That he was a shrewd business man and smarter? I don't think that statement was brought out. It was probably mentioned in a way.
"Q. Was it stated that he was a shrewder business man than Mr. Kinsey? A. Well, I don't know."
Some other question similar to the above but about the same in substance was asked the juror, to which the juror replied: "Well, I don't remember that that discussion took place."
Appellant submits that in the jury room some of the jurors, in order to induce the juror Sam Nelson to agree to a verdict, stated that "Al Kinsey was a poor man and was putting up his home," and that when that statement was made Nelson agreed to join the other eleven jurors in the verdict.
The evidence of Sam Nelson on the question of misconduct shows the following:
"Q. Was anything there said (jury room) about Mr. Kinsey being a poor man and having put up his home? A. Yes, sir."
Kinsey had put up his home and in doing so had said that his home was all he had. The evidence does not show that he had any other property.
The court found against appellant on the issue of misconduct of the jury.
We think no reversible error is shown, and the motion is overruled.
*Page 557SUTTON, J., did not participate.