Appellant has filed his motion for rehearing which is presented in a well prepared brief and is based on the contention that the issue of misconduct by the jury should have been considered by the trial court, and that when considered a new trial should have been ordered.
We have again carefully considered all of the record in this case and we think the original opinion reaches the correct conclusion. While the trial court sustained a motion to strike the allegation which complained of jury misconduct from the motion for new trial, the evidence on the subject is brought forward in a bill of exception. We have carefully considered this and it appears that two jurors testified that Mr. Rountree, the foreman of the jury, had made some statement to the effect that if appellant had not entered the building alleged to have been burglarized he would have taken the stand to explain his possession of the stolen property. Mr. Rountree definitely denies making any statement which might have been so construed. All of the other jurors failed to hear such statement, and some of them denied that it was made. Given its most favorable construction, an issue of fact was presented to the court and his finding thereon would be binding on this Court. We do not wish to be understood, however, as receding in any degree from the position stated in the original opinion and we fully sustain the trial court in his refusal to hear the issue.
The motion for rehearing is overruled.