In his motion for rehearing appellant insists that we reached a wrong conclusion relative to his claim of misconduct of the jury. This has caused us to again carefully review all the evidence given by the jurors upon the hearing of the motion for new trial. Unless we misapprehend the facts they exclude the idea of injury resulting to appellant from any improper conduct on the part of the jury. Upon the first ballot the jurors stood eleven to one for conviction. The only juror who voted for acquittal states positively that he heard nothing said in the jury room about appellant's reputation, but explains that what caused him to be for acquittal in the beginning was because it seemed that one Gaunt was equally guilty with appellant and he could not understand why the state would turn Gaunt loose. It is apparent that if anything was said in the jury room about appellant's reputation it did not cause this juror to change his vote on the second ballot to guilty.
We do not feel authorized to sustain appellant's complaint that the juror Brownlow was a biased or prejudiced juror. Upon his voir dire examination he informed counsel and the court that he was acquainted with appellant. If further inquiry was made of this juror the record is silent with reference to it. It appears that prior to the trial he had heard some talk that appellant's reputation was that of a "bootlegger." He never imparted this to the other jurors before they reached their verdict. We would not be justified in holding that merely because a juror had heard appellant's general reputation discussed it would render such *Page 658 juror disqualified for bias or prejudice. Some other facts must be made to appear before such a conclusion would necessarily follow.
The motion for rehearing is overruled.
Overruled.