In a logical and forcible motion for rehearing appellant insists that we erred in our original opinion. The only grounds of the motion that we deem it necessary to discuss are those calling in question our opinion wherein is upheld the action of the trial court in refusing a motion for new trial based on misconduct of the jury. The matter of misconduct being controverted, we are not inclined to question the correctness of our holding to the effect that the evidence being before the court below at the time the motion for new trial was presented, and having been heard by him and decided adversely to appellant, we are bound by such action unless it plainly appears to us that there was no evidence to justify the conclusion reached by the learned trial judge. The complaint was based principally upon two statements alleged to have been made by members of the trial jury while in their retirement. One was that a juryman said in substance if the jury did not assess the death penalty a mob would get the defendant. The other set up that it was stated in said jury room in substance that there were three persons involved in this killing, and that *Page 567 this was the first one to be tried, and that unless the death penalty was assessed in this case, it would not be assessed in the others when tried. We have been unable to bring ourselves to believe either of these matters to be statements of facts purporting to be known to the declarants and of the existence of which the other members of the jury were not aware and whose statements so made would be in the nature of other evidence presented to the jury while deliberating. Nor are we willing to agree that such statements even if made, evidence such misconduct on the part of the trial jury as would require a reversal at our hands. From the case of Jack v. State, 20 Texas Crim. App., 660, we take the following quotation:
"But we are not prepared to say that the statement of the juror, complained of, constituted misconduct such as the law contemplates as a ground for new trial, even if it did have the effect to increase the defendant's punishment. The statement had no reference whatever to the question of defendant's guilt, and could in no way have affected the determination of that issue. It was a statement made by way of argument, explaining the juror's reasons for being in favor of assessing a greater punishment than in ordinary cases of theft. He had himself suffered loss by theft committed by his porter, and he thought that this class of employees should be dealt with severly when they stole the property of their employers, because they were trusted, and could not be watched and detected as others could be in whom no such confidence was reposed. We have found no decision in this or any other State which goes to the extent of holding such statements to be misconduct. It seems to us that it would be a dangerous and exceedingly pernicious practice for the courts to permit the sanctity of the jury room to be invaded, and jurors to be interrogated as to the arguments used in their deliberations, and the influence of such arguments upon their minds, and the reasons and considerations upon which their verdicts were based. There might arise, perhaps, an extreme case in which such a practice would be tolerated to prevent flagrant wrong and injustice, but this court would not be willing to sanction the procedure unless it should manifestly appear that the ends of justice imperatively demanded it. If it were permitted to attack and set aside a verdict because of arguments and reasons advanced and urged by jurors in their deliberations thereon, it would destroy free discussion and interchange of opinions among jurors. It would open the door to a searching inquiry in relation to every act and word which transpired in the jury room, and would subject each individual juror to be placed upon trial before the court to answer for the soundness and propriety of the opinions expressed by him in the jury room.
"There is no warrant in the law for such practice."
This opinion of Judge WILLSON so fully expresses our views in regard to the matter embraced in the complaint under discussion that *Page 568 we do not deem it necessary to add anything thereto. We merely state that it was necessarily manifest to all of the other jurors that if one of their number said: "If we don't hang this man, a mob will get him;" and that if one of their number said, "If we don't hang this man, the other two will not be hung when they are tried," — that these were but purely speculative and conjectural opinions and expressions, not of past facts but of future probabilities, that each member of the jury knew and could not have failed to know that such utterances were merely argumentative.
We regret we cannot attach the importance to the testimony given by a State witness that there were ants found upon the head of deceased after his death as to think this character of evidence so prejudicial as to call for a reversal of this case.
The other questions raised by appellant in his motion for rehearing apparently have been thoroughly considered and discussed in our original opinion and we see no good that can come of any restatement of them or of our views.
Finding no error in the motion for rehearing, same will be overruled.
Overruled.