Conviction is for murder, punishment being assessed at three years in the penitentiary.
Appellant was manager of a laundry at Mexia. Deceased, (W. M. Smith) was an employee. On Saturday afternoon, June 24th, 1933, appellant killed deceased in the office of the laundry plant. Deceased was in his shirt sleeves and wearing white trousers and was unarmed. No one was immediately present at the time of the killing save appellant and deceased.
Appellant claimed that deceased was drinking on the afternoon in question and came into the office where appellant was checking up the week's work and disturbed appellant by talking over the telephone; that appellant complained about the disturbance; deceased left but came back in a few minutes, apparently angry, cursed appellant, and — as it looked to appellant — made a move as if to draw a weapon, whereupon appellant shot deceased three times.
Appellant filed an application for suspended sentence and proved a good reputation.
A number of objections to the charge are found in the record. We have examined the instructions in the light of the exceptions thereto and have failed to discover any serious defects in the charge.
In a supplemental motion for new trial appellant averred that the jury had received evidence other than as heard from the witness stand. The motion is not verified. It has been the consistent holding of this court that in order to raise the issue of misconduct of the jury the motion for new trial must be verified. Branch's Ann. Texas P. C., Sec. 573; Bryant v. State, 69 Tex.Crim. Rep., 153 S.W. 1156; Dodson v. State, 92 Tex.Crim. Rep., 244 S.W. 601; Chapman v. State, 73 S.W.2d 536. See, also, White v. State, No. 18,183, decided April 29, 1936. (Reported on page 300 of this volume).
We discover no error in the record upon which a reversal might be predicated.
The judgment is affirmed.
Affirmed. *Page 433
ON MOTION FOR REHEARING.