Conviction is for possessing intoxicating liquor for the purpose of sale, penalty two years in the penitentiary.
The evidence justified the verdict and judgment. The legal questions raised may be disposed of without burdening this opinion with a lengthy recital of the facts.
When the State proposed to prove by the officers that they found in defendant's barn a concealed door in the bottom of the "horse trough" which led into a cellar in which was found a complete still and several gallons of whiskey, the objection was made that it had not been shown that the officers had a search warrant authorizing the investigation. It is nowhere certified in the bill that in fact they had no search warrant. The statement of an objection is not a certificate that the facts are true which form the basis of the objection. (See Sec. 209, Branch's Annotated P. C.). Even if the bill was not defective in the particular mentioned, the matter complained of would present no error. Welchek v. State, 93 Tex. Crim. 271,247 S.W. 524; Harris v. State, 93 Tex.Crim. Rep.,248 S.W. 54; Bell v. State, ___ Texas Crim. Rep. ___,250 S.W. 177; Burks v. State, ___ Texas Crim. Rep. ___, 260 S.W. 181.
Defendant claimed as reasons why he should be granted a new trial: (1) That the jury had discussed and considered the defendant's failure to testify in violation of Art. 790 Cow. C. P.; (2) That there has been a separation of the jury prohibited in felony cases by Art. 744 Cow. C. P.; (3) That the jury after retirement had received other evidence in contravention of Sub. 7, Art. 837 Cow. C. P. The evidence produced upon hearing the motion for new trial negatived completely that there was any mention or reference whatever to the fact that defendant did not testify. Upon the issue of separation the evidence showed that one of the jurors (Schotts) had never served on a jury in a felony case but had frequently been on juries in civil cases, and was unaware of a different rule obtaining relative to separation of juries in the two classes of cases. As the jury passed from the court room on the way to the jury room Schotts left them, went through the hall, downstairs and across the street to a drug store for the purpose of getting a cold drink. In the hall he asked J. D. Buster, an attorney, how long they would have and *Page 466 was told about five minutes. Buster saw the juror speak to no one else in the hall, and saw him go down the stairway. Thinking that he was one of the jurors and noticing that he was alone, Buster stepped into the sheriff's office and notified that official. The sheriff looked immediately out of his office, saw Schotts hurrying across the street to the drug store, saw him stop at the cold drink stand, get a drink and come directly back to the court house where he was met by the deputy in charge of the jury who had discovered his absence. The juror was not away from the other jurors longer than three minutes. He spoke to no one save Buster. These facts were established by the witnesses other than the juror himself. In Watson v. State, 82 Tex.Crim. Rep., 199 S.W. 1113, this court, in commenting on a similar incident, said: "The purpose of the statute (Art. 744 Cow. C. P.) is to preserve the purity of the verdict, and where it is shown that a temporary separation of one of the jurors from his fellows did not and could not have affected the verdict or impartiality of the trial, a reversal is not required nor authorized." Many authorities are collated in Watson's case sustaining it. The burden was on the State to show that the separation could not have been harmful. This burden was discharged in the present instance.
Upon the matter of the jury receiving other evidence after their retirement, defendant alleged that before the verdict was agreed upon the juror Echols stated to the other jurors that "defendant was an old timer in the business and a chronic or hardened violator of the law; that he had been indicted many times for violations of the prohibition law, and had been tried but had never been convicted." Upon the issue raised by this everment the evidence was conflicting. The foreman of the jury testified that he heard Echols say the law ought to be enforced and that violators of the law ought to have such penalties as would deter them from violating the law in time to come. Echols admits making this general statement. We observe no impropriety in it. He denies making at any time the statement attributed to him by defendant. The foreman testified that he heard Echols say substantially what the defendant complains about, and was of the opinion it occurred before an agreement on the penalty was reached, but frankly states he may be mistaken as to when he heard it, and that it may have been after the verdict was agreed upon. The juror who seems to have had the argument with Echols as to what punishment should be assessed swears positively that Echols said nothing about defendant's previous record. Another juror says the first he heard of anything of the kind was after they had returned the verdict, had been discharged, and while they were being paid off. Other jurors disclaimed hearing such statement made by Echols or any one else in the jury room. This is a sufficient statement to show that the evidence was in conflict and presented a disputed issue which was determined in favor of the *Page 467 State. There is no showing of an abuse of judicial discretion in respect to the matter, in the absence of which the finding of the presiding judge will not be disturbed. Sanchez v. State, 90 Tex.Crim. Rep., 236 S.W. 734; Manley v. State,92 Tex. Crim. 537, 244 S.W. 533, and cases therein cited.
In passing sentence upon defendant the court overlooked the indeterminate sentence law. The sentence will be corrected to read that defendant be confined in the penitentiary not less than one year nor more than two years.
As so reformed the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.