In the motion for rehearing counsel for the State contends that we were in error in holding that one of the jurors was shown to be prejudiced.
N.E. Hillyard testified in part as follows:
"After that time [referring to the accident] I had a conversation with Crawford Winfrey, while drinking coffee at the Central Drugstore. I had the conversation with him the morning after that accident. That was the morning after the 18th of September. * * * He said that when Clarence Bell was run over here in Brady everybody made a big hullaballoo about it, and they did nothing about it. And this boy had killed three Mexicans and that if he was on the jury he would give him the limit. * * * He said that if he was on the jury he would give him the limit, and that those Mexicans were just as good as Clarence Bell."
The juror Winfrey testified in part as follows:
"I did not tell N.E. or 'Fat' Hillyard on the morning that the wreck occurred out yonder on the road, the 17th day of September, that the people here got out and raised a lot of hell when somebody ran over Clarence Bell and a reward was offered. I did not tell him that Carl Stanley Anderson was drunk when this accident occurred. I did not tell him that 'he ran over and murdered these Mexicans and nothing was being done or said.' I did not tell 'Fat' that Anderson was drunk and driving the car recklessly. I did not tell him that Anderson murdered these Mexicans. I do not remember that I said thatCarl Stanley Anderson ought to be sent to the penitentiary forlife. I do not remember that I said if I was on the jury that Iwould send him to the penitentiary for the rest of his life. Ido not remember that I ever talked to 'Fat' Hillyard about thisin any way or that he mentioned this matter to me. It ispossible that we talked about the case. We very likely did." (Italics ours.)
The italicized language of the above quotation shows the juror declined to deny that he stated to Hillyard that if he was on the jury he would give appellant "the limit." In King v. State, 94 S.W.2d 173, it is shown that a witness on the hearing of the motion for new trial testified that sometime prior to the trial one of the jurors stated to him that King "ought to have the electric chair." When the juror was called to testify he declined to deny that he made the statement and would go no further than to say he did not remember making it. In reversing *Page 111 the judgment of conviction we cited Davis v. State,275 S.W. 1029. In that case it was shown by witnesses for the appellant on the hearing of the motion for new trial that a juror had expressed himself as being prejudiced against Davis. The juror testified but declined to deny that he made some of the statements attributed to him. He said, however, he did not remember that he had made such statements. In concluding that a new trial should be granted, this Court, speaking through Judge HAWKINS, used language as follows:
"We think this case, by reason of the facts recited, does not fall within the rule that where issue is joined upon such a question and the evidence thereon is in conflict the discretion of the trial judge as reflected in his ruling will not ordinarily be disturbed, but are of opinion the evidence upon the matter shows that the fairness of the jury trying appellant has been impeached by showing the presence thereon of a juror whose state of mind towards appellant was such as to deprive him of that character of trial by a fair and impartial jury contemplated by the law."
Counsel for the State has attached to his motion for rehearing several ex parte affidavits which have no place in the record and can not be considered by this Court in the disposition of the motion. Looking only to the record as made in the court below, we are constrained to adhere to the conclusion expressed in the original opinion.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.