In view of the fact that in the preparation of our original opinion of affirmance, the bill of exceptions setting up misconduct of the jury was overlooked and not considered; and that same was first passed upon in our opinion on rehearing — the correctness of which is now vigorously assailed in a motion which we are asked to pass upon — we have concluded that fairness would entitle appellant to his day in court upon his motion for rehearing of the matter which so escaped our attention originally.
In passing on the claim of misconduct of the jury, it appears from the record that eleven jurors were used as witnesses and testified before the trial court whose conclusion of the matter then before him appears in his qualification to this particular bill of exceptions. The point of contention was that while all the jurors agreed at once upon their retirement on appellant's guilt, they were divided as to the penalty, and that the penalty agreed upon, viz.: three and one-half years in the penitentiary, was more than it should have been, and that the length of said term was caused by improper statements made in the jury room. The testimony of all the jurors is set out at length in the bill under discussion. The right of the jurors to discuss the testimony, which must include what the witnesses affirm and also what they deny, or about which they were doubtful — and of each man on the jury to express his opinions and conclusions *Page 678 regarding same, can not be questioned. The manner, bearing, appearance, expression, hesitation, etc., etc., of the witness are observed by the jury, and ought to be, and become an important part in the formation of their belief about the guilt or innocence of the accused. A juror's right to doubt the truth of an expressed denial of a fact may be perfectly well founded, as based upon manner and appearance and conduct of the witness and the surrounding facts. This court would not, under any circumstances, so far invade the province of the jury as to say that it was improper for jurors to say that they did not believe the testimony of a witness who had answered particular questions in the negative. In this case it appears beyond question that officers having obtained information of the fact that a quantity of whiskey was to be delivered at the house of a woman named Broughten, went to the house, and while there and talking to the woman the officers observed appellant come in. Said officers presently found ten jars of whiskey at a place where they testified it was not when they came in the house and could not have gotten there except same was brought by appellant. It appears from the testimony of jurors that in discussing in their retirement the penalty, the only thing considered by appellant's counsel to be of injury was the fact that some of them expressed their belief that the District Attorney would not have asked appellant regarding another liquor transaction, if he had not had some ground for the question. For a reviewing court to undertake to go into the jury room by a probe and say that the juror's right to discuss testimony should be thus and thus or not so and so, would be wholly unwarranted. The matter is discussed and authorities cited at some length in Todd v. State, 93 Tex.Crim. Rep..
We are still of the opinion that the action of the trial court in overruling appellant's motion for a new trial was correct, and this motion for rehearing will be overruled.
Overruled.