In the light of appellant's motion for rehearing we have again examined this record. His contentions revolve around the refusal of the trial court to grant him a new trial because of alleged misconduct of the jury, based on what was observed by them on a trip to get some coffee, on the night the verdict was returned, — and what was said by them after they came back to their jury room on said occasion. We note that after hearing all the testimony adduced on the presentation of appellant's motion, the court below made his findings of fact, in which he set out that there was a general discussion among the jurors of a prison break, and that one Lutlow had escaped, while the jury were down town after coffee on the night in question; also that when they returned to their jury room and resumed their deliberations juror Bleimeyer said, in substance, "You see what can happen when a man goes to the penitentiary for a long term of years." He also certifies that Bleimeyer was admonished by juror A. B. Crow that such discussion should not be indulged in, and upon this the discussion ceased. The court further found as a fact *Page 606 that before being impanelled, each juror in the case knew that prison breaks frequently occur, and that life termers or prisoners with long sentences did escape, and that the information about Lutlow's escape did not apprise any of the jurors of any fact they did not already know. Further, he found that the jury received no new evidence, and was guilty of no misconduct.
As some reenforcement of the court's findings, if such be necessary, — we note that juror Mansfield testified on the hearing of the motion that when the jury went for coffee they stood ten for the death penalty and two for ninety-nine years; that jurors Mueller and the one of the Crow brothers who worked for the Frigidaire were the two for ninety-nine years. Juror Ray Crow was one of the four jurors who testified on the hearing of the motion, and he said that he worked for the Frigidaire, and was one of the jurors who was for ninety-nine years when they went for coffee; that he saw no headlines in the papers about a prison break, and heard no discussion among the jurors about such break when on the street, or after they got back to their room. He did hear such matter mentioned. It is thus made clear by the testimony of the juror Crow that his change from ninety-nine years to the death penalty was not caused or influenced by hearing any discussion of said prison break. Juror Mueller, the other juror who was for ninety-nine years, was not called on the hearing of the motion. Hence it appears to us that appellant's contention is wholly without ground of support; that the findings of the trial court, and the testimony of the jurors heard, are opposed to appellant's contention. It also appears that the jury went for coffee about 11 P. M., and that they did not agree upon their verdict until 2:30 A. M. In view of the finding of the court, and of the testimony that there was no discussion of the prison break in the jury room, other than the remark of Bleimeyer, it would appear reasonable to conclude that in the three hours discussion among the jurors, after they returned to their room, juror Mueller had plenty of opportunity to come to agreement with the other jurors, as did juror Ray Crow, without the exertion of any improper influence or argument. So believing, the motion for rehearing is overruled.
Overruled.