A re-examination of the testimony touching the misconduct of the jury makes evident to the writer that the facts render a reversal of the case imperative.
One or two jurors did not hear the objectionable remarks or any comment upon them. With that exception all of the jurors testified that the occurrence took place before they had agreed upon a verdict fixing the penalty. One of them, when recalled by the state, modified his testimony but the modification is not deemed to have been such as to have justified the finding against the accused. The greater portion of the questions directed to the jurors related to their opinion that they were not influenced by the improper testimony. The court has often said that such inquiry was not pertinent and cannot be considered on appeal. See Mitchell v. State, 36 Tex. Crim. 318,33 S.W. 367. In many other cases the same announcement has been made.
The state's motion for rehearing is overruled.
Overruled.