The State moves for a rehearing, urging that we erred in our former opinion in holding it to be shown that during their deliberations the jury herein discussed a prison break and the killing of a guard, which had taken place the day before, and in saying in our opinion "This was * * * imputing to appellant a bad reputation which was highly prejudicial to him, and this was not controverted by the State." It is insisted that the trial court heard the four jurors who testified on the hearing of the motion for new trial, and found from their testimony as a fact that the killing of a guard was not discussed in the jury room, and that save for one remark by juror Bleimeyer, — made after the jury reached their room and resumed deliberation of the case upon returning from getting coffee, — all that was said about the prison break and the conviction of a prisoner named Lutlow, — was while the jury were on the street on said coffee trip, and was, therefore, not part of their deliberations, and is not shown to have affected their verdict.
Examining the record, we note that when the motion for new trial was heard, four jurors gave testimony, — two for the *Page 602 State and two for the defense. A. B. Crow, for the defense, swore that while on a trip to get coffee there was some discussion about a prison break, and that Lutlow had escaped; but he did not remember what was said, but after they went back to the jury room one Bleimeyer commented on the fact that it often happened when parties were sent up for long terms, they escaped; at which point witness said he remarked: "I wouldn't discuss that, it might be ground for new trial." This juror affirmed that he was for life imprisonment, but later voted for the death penalty. Asked what made him change, he said: "Just generally on the evidence as a whole I concluded that the man deserved the death penalty." He also said the only juror he recalled who mentioned the prison break was Bleimeyer.
The other juror who swore for the defense was one Joyce, who said that on the coffee trip he noticed some headlines in a paper that there had been a prison break and a guard had been shot; and some remarks were made about it. He testified: "As far as I am concerned, I don't remember discussing it or hearing it discussed after we got back, just outside of the comments there by the newsstand." He further testified that after they got back he, Bleimeyer, A. B. Crow, the officer in charge, and one Hayman were in a separate room washing their hands, and Bleimeyer said: "You see what happened there today in the paper about breaking out of prison and shooting a guard. That is just exactly what will happen if we send this nigger to the penitentiary." Joyce testified that Crow then said to Bleimeyer: "You better not discuss that. That is something that should not be brought up in the jury room." Joyce said right then it ended. He further said he voted for life imprisonment until next to the last ballot; that he really felt that appellant was guilty to begin with; that he was entitled to a life term, but "After I deliberated and thought more and more about it and revolved the evidence over in my mind, I would say probably he had it coming to him. My change from life to death was based on my revolving and analyzing in my mind the evidence I heard from the witness stand and the law given by the court." These were the only witnesses offered by appellant on the hearing of the motion.
The State called juror Mansfield, who swore that on the street going back from the coffee trip Deputy Sheriff Burke remarked that Lutlow had gotten away that day, to which witness replied: "That is a bad man outside." That was all that *Page 603 was said. Witness further testified that when they went for coffee the jury stood ten for the death penalty and two for life imprisonment. He said that on the second ballot all of the jurors voted guilty, and on the first ballot as to whether guilty of murder with malice, all voted affirmatively. He swore positively that there was no discussion in the jury room as to the jail break or anything pertaining to it. He further said he heard nothing of the prison break before the case was argued, and that there was no argument about it in the jury room. He testified that he was for the death penalty from the beginning.
The State also called juror Ray Crow, a brother of A. B. Crow, who was called by the defense. This witness swore that on the coffee trip he saw no headlines in a newspaper, and heard no discussion about any prison break among the jurors either in the jury room or while on the coffee trip. Cross-examined, he said he heard one mention of a prison break while on the coffee trip, but it was not discussed. He further testified that he voted for life imprisonment, and was one of the last to agree to the death penalty; that he and juror Muller were the last to come over. He said that several jurors argued with him and Muller, but he did not know who; they used different arguments. He seemed not to recall any of them. We have set out at some length the material points appearing in the statement of facts heard on the motion for new trial.
The question before this court is whether the trial court abused his discretion in refusing a new trial after hearing the evidence. We have uniformly held that unless we be convinced from the record that such refusal was clearly an abuse of such discretion, we would not reverse. See Kelly v. State,95 Tex. Crim. 138; Rosamond v. State, 97 Tex.Crim. Rep.; Lamb v. State, 98 Tex.Crim. Rep.. In Douglas v. State, 58 Tex.Crim. Rep., 124 S.W. Rep., 933, we said that whether an accused be granted a new trial for alleged misconduct of the jury is particularly cognizable by the trial court whose conclusion would not be interfered with on appeal unless clearly wrong and unsupported by testimony. See on this particular point Watson v. State, 82 Tex.Crim. Rep.; Alexander v. State, 84 Tex.Crim. Rep.; Reese v. State, 87 Tex.Crim. Rep.. We quote what Judge Hawkins said in Kirby v. State, 96 Tex.Crim. Rep.:
"When appellant asserted misconduct of the jury in the particular complained of the burden of proving it rested upon *Page 604 him. The evidence taken upon hearing the motion rendered the question a controverted one (if the testimony of the juror Obenhaus can be said to have raised the issue) and it was within the province of the trial judge to settle the controversy; having done so his finding upon the matter would be conclusive upon this court unless an abuse of his judicial discretion in the matter clearly appeared. Howe v. State,77 Tex. Crim. 108, 117 S.W. Rep. 500; Shaw v. State,32 Tex. Crim. 155, 22 S.W. Rep. 588; Potts v. State,56 Tex. Crim. 47, 118 S.W. Rep. 535; Sanchez v. State,90 Tex. Crim. 518, 236 S.W. Rep. 734; Manley v. State,92 Tex. Crim. 537, 244 S.W. Rep. 533. For a collation of many other authorities upon the same point see Section 574, Branch's Ann. Pen. Code, page 295. The record presents no question of an abuse of judicial discretion upon the part of the learned trial judge in determining the issue of fact in favor of the State."
In Ross v. State, 98 Tex.Crim. Rep., Judge Morrow said:
"Misconduct is not defined, but judicial discretion is conferred upon the trial court to determine on the facts of each case whether the alleged misconduct is proved and whether its effect was to deprive the accused of a fair trial. * * * In this connection, if the proof of the new evidence is conflicting, the conclusion of the trial judge will not be overturned. Todd v. State, 93 Tex.Crim. Rep.. If its materiality is doubtful, the discretion of the trial court in approving the judgment will prevail. Holt v. State,51 Tex. Crim. 15."
From what has been said it is manifest that the discretion of the trial court applies both to the question as to whether the allegel misconduct has been proved, and also whether, if proved, it was such as affected the fairness of the trial. Boiled down, the most that can be said for appellant's contention in this case is that after the jury came back from what we have called their coffee trip, four of them were in a room washing their hands when one of them, characterized by his fellows as a very talkative man, said: "You see what happened there in the paper today about breaking out of prison and shooting a guard. That is just exactly what will happen if we send this nigger to the penitentiary. He won't be there over a year, and he will be doing the same thing." It is shown that juror Crow said to him: "You had better not discuss that," and nothing further was said. Two of the four jurors there present and who heard what was said were used as witnesses for appellant *Page 605 on the hearing of the motion for new trial, and both swore that they changed their vote to the death penalty afterward because they analyzed the testimony and concluded appellant should be given the death penalty. Neither asserted that he was influenced by what Bleimeyer said, and it must be apparent that any sensible man competent to sit upon a jury would necessarily know that what Bleimeyer was saying was merely his opinion and not a statement of a fact, and not anything about which he knew any more than the other jurors. In fact it is found by the court in his finding of fact that all of the jurors knew that prisoners had gotten away, and that putting any man in prison for a long term increased the chances of his escape, without, this being disclosed by anyone.
That what Bleimeyer said was not discussed generally in the jury room is apparent. That if as mentioned, it was reproved and not repeated, is beyond question. Upon mature reflection we conclude that the court's action was well within his discretion from both the angles we have been discussing.
The State's motion for rehearing is granted, the judgment of reversal is set aside, and the judgment of the trial court is affirmed.
Affirmed.
ON APPELLANT'S MOTION FOR REHEARING.