Conviction for selling intoxicating liquor; punishment, three years in the penitentiary.
The facts in this case establish beyond doubt appellant's guilt. When the case was called for trial appellant filed a plea of former jeopardy, setting up that she had been convicted of the same offense at a former time, and attaching as exhibits to the plea a copy of the charge of the court and the verdict of a jury, both dated in 1929. It was alleged in the plea that the verdict had never been set aside, and the trial court was asked to "abate" the trial because of the matters alleged. Appellant appears to have introduced proof of the fact that an indictment was returned against her and that a verdict was rendered. Neither the allegations *Page 234 nor the proof adduced are sufficient to support a plea of jeopardy. It is not shown that judgment was ever entered, or sentence pronounced. The learned trial judge heard the plea and overruled it. It appears that this cause was numbered in the trial court 5407. Examination of the records of this court discloses the fact that on November 11, 1929, there was filed with the clerk of this court a transcript on appeal from the district court of Cherokee county, Texas, in cause No. 5407, styled Orene Pond v. State of Texas, and that thereafter, in an opinion duly rendered by this court, the judgment in cause No. 5407 was ordered reversed and the cause remanded for a new trial. In our opinion the action of the trial court in declining to consider said plea of jeopardy is not shown to be erroneous.
Appellant asked a new trial on the ground of misconduct of the jury, attaching the affidavits of four jurors to her motion. The state controverted said motion, and the court heard the evidence of eleven jurors, including the four whose affidavits were attached to said motion. The juror Garner repudiated the only thing appearing in his affidavit from which inference might arise that harmful discussion was had in the jury room. Careful examination of the testimony of the jurors fails to reveal any misconduct on the part of any of them. Nothing in their testimony appears of sufficient materiality to call for discussion.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
Morrow, P. J., absent.
ON MOTION FOR REHEARING.