It now appears that at the time notice of appeal was given the appellant was allowed ninety days from that date within which to file his bills of exception. The bill appearing in the record is therefore before us for consideration, and is a claim by appellant of jury misconduct.
This bill, upon its face, purports to set out the evidence heard upon the motion for new trial. The trial court qualified the bill by setting out the testimony of one of the jurors differently from that contained in the bill proper. Appellant, having accepted the bill as thus qualified, is bound thereby. In disposing of the question, the testimony of the juror, as set out in the qualification, controls and will be so considered.
The bill, as qualified, presents the following:
It appears that after the jury was impaneled and the state presented its testimony by two witnesses, court adjourned for lunch. During the lunch hour, one of the jurors trying the case and counsel for appellant met upon the streets, whereupon, according to the testimony of the juror, the following occurred:
"I remember passing Mr. E. A. Landman, George Cox's lawyer, as I was returning to the Courtroom after dinner the day he was being tried. I did not tell his lawyer, Mr. Landman, that I had talked to any of the jurors about George's case. I definitely had not discussed George's case with any of the jurors until it was disposed of in open court.
"Inasmuch as George was an old fiend of mine, I felt very kindly toward him, and inasmuch as I had served with four of *Page 58 the jurors on another liquor case the day before, at which time he convicted another person in the case, I realized those particular jurors, as well as myself, would certainly convict George if the evidence presented to us convinced us that he was guilty.
"Therefore, when I passed George's attorney, Mr. Landman, on the way back to court from dinner, in an endeavor to 'fudge' for Geirge, I made this statement to Judge Landman: 'Judge, if George is guilty, I would go back to court and enter his plea of guilty, because I served with four of the jurors, trying his case yesterday, and they are men who will certainly convict him if they feel that he is guilty.' Judge Landman replied: 'George tells me that he is not guilty.' I then replied 'OK.' or words to that effect, and we walked up into the court room.
"One or more of the jurors were in favor of giving George a jail sentence, but I argued that he had a wife and children, and finally succeeded in getting the sentence agreed upon at five hundred dollars fine."
Appellant insists that such testimony shows that the juror conversed with another person about the case, and that under the provisions of Art. 671, C. C. P., Sec. 7 of Art. 753, C. C. P., and Art. 754, C. C. P., a new trial should have been awarded.
When a juror converses with some other person about the case on trial, the presumption of injury obtains and continues until the state has discharged the burden cast upon it of showing non-injury. Pearson v. State, 145 Tex.Crim. R.,165 S.W.2d 725, and authorities cited under Art. 671, Vernon's C. C. P.
The conduct of the juror in this case is certainly not to be commended and should not have occurred. It occurs to us, however, that it was the purpose of the juror to help the appellant; certainly he was not trying to injure him. Nor do we agree that what the juror said showed that he had prejudged the case or was biased against appellant. It must be remembered that the juror had heard the state's testimony evidencing appellant's guilt at the time he conversed with appellant's counsel. His idea as to the probability of appellant being convicted by the other jurors could have been based upon that testimony.
The conclusion is expressed that the state discharged the burden cast upon it by showing non-injury.
The question as to the granting of a new trial under the circumstances and especially under Art. 754, C. C. P. was a matter addressed to the discretion of the trial court. Our review *Page 59 of his ruling is limited to a determination as to whether he abused that discretion.
We are unable to reach the conclusion that he did.
The motion for rehearing is overruled.
Opinion approved by the Court.
ON SECOND MOTION FOR REHEARING.