Conviction is for sodomy; punishment fixed at confinement in the penitentiary for a period of fifteen years.
On hearing the motion for new trial charging misconduct of the jury, the evidence disclosed, without conflict, that one of the jurors, before his selection, had knowledge of the fact that the appellant, on a former occasion, had been convicted of a like offense. It was also shown that after he was selected, he communicated this fact to other members of the jury, but that this was not done until after the jury had reached the conclusion concerning the verdict they would render. It was also disclosed that neither appellant nor his counsel were aware of this knowledge on the part of the juror; that the previous conviction was in a different jurisdiction; and that on his voir dire inquiry was made touching his knowledge of the parties and his knowledge of any fact which would militate against his impartial action in deciding the case, he disclaimed any such knowledge; suppressed the facts which he knew and misled the appellant. If he believed that the information in his possession would not affect his verdict, he should have disclosed the facts in his possession and left the appellant in a position that he might decide whether he would excuse the juror by peremptory challenges.
The ground for the motion for new trial is that by the juror's conduct the appellant was deprived of a trial by an impartial jury. Such a jury in felony cases is guaranteed by the constitution. See Harris' Texas Const. Art. 1, Sec. 10. An impartial jury consists of twelve impartial jurors. Const. Art. 5, Sec. 13; Huebner v. State, *Page 266 3 Texas Crim. App. 458; Lott v. State, 18 Texas Crim. App. 630; Jones v. State, 52 Tex.Crim. Rep..
The Legislature is commanded to pass laws making effective the provision of the Constitution that the right of trial by jury shall remain inviolate. Following the procedure enacted in obedience to this constitutional provision, the appellant examined the juror on his voir dire under the eye of the court and under oath, and the juror failed to disclose the knowledge which he then possessed that the appellant, in a different city, on a former occasion, had been convicted of an offense like that for which he was to be tried. It has often been held that when a partial juror or biased juror or prejudiced juror is selected without fault or lack of diligence on the part of the accused or his counsel, they acting in good faith upon his responses to questions upon his voir dire and having no knowledge of their inaccuracy, there exists good ground for a new trial. Long v. State, 10 Texas Crim. App. 198; Sewell v. State, 15 Texas Crim. App. 62; Graham v. State, 28 Texas Crim. App. 582; McWilliams v. State, 32 Tex.Crim. Rep.. We think the juror's conduct characterizes him as other than an impartial juror. Long v. State, 32 Tex.Crim. Rep.; Long v. State, 10 Texas Crim. App. 198; Hughes v. State, 60 S.W. Rep., 563; Hopkins v. State, 68 S.W. Rep., 986.
We think that the record reveals that the appellant was without laches or lack of diligence and was misled by the responses of the juror into selecting him, and that he not being an impartial juror, it was incumbent upon the trial court to grant the motion for new trial. The jury acts as a unit, and the disqualification or prejudice of one of its members is sufficient, upon motion for new trial, to vitiate the verdict. McWilliams v. State,32 Tex. Crim. 269; Long v. State, 32 Tex.Crim. Rep.; Graham v. State, 28 Tex.Crim. Rep.; Ruling Case Law, Vol. 16, p. 312, sec. 120. The fault was not cured by the verdict which assessed against the appellant the extreme penalty allowed by law for the offense with which he was charged.
The judgment is reversed and the cause remanded.
Reversed and remanded.
ON REHEARING. January 11, 1922.