Appellant seeks a rehearing on the ground of misconduct of the jury. The rules governing new trials for alleged misconduct of the jury have often been discussed. In the comparatively recent case of Ross v. State, 98 Tex.Crim. Rep., we stated some of them. It is there *Page 99 stated that there must be averment and proof of the receipt by the jury in retirement of new evidence of a material nature, which appearing, the presumption of injury to the accused obtains unless the contrary is made to appear. It is also stated that if the proof of the receipt of such evidence is conflicting, the conclusion of the trial court will not be overturned, citing Todd v. State, 93 Tex.Crim. Rep.. It is also said in the opinion that if the materiality of the evidence given by jurors in the jury room is doubtful — the discretion of the trial court in overruling the motion for new trial, will not be held to have been exceeded, citing Holt v. State, 51 Tex.Crim. Rep., and other authorities. The point at issue in the Ross case, supra, as in the instant case, was misconduct of the jurors, consisting of their having made statements of facts in their retirement, hurtful to the accused. We think it might be fairly added to what was said in the Ross case that we would not hold the refusal of a new trial, sought on account of statements made by one juror to others in the jury room, was erroneous, or an abuse of the discretion of the trial court when the evidence heard left in doubt the question as to whether the matter complained of occurred before or after the verdict was agreed upon by the jury. Looking to the record before us, we find that on the hearing of the motion for new trial eleven jurors testified — three on behalf of appellant and eight for the state. Shumate for appellant said he heard a juror say that water mixed with whiskey in proportions of half and half would produce intoxication. He also said he heard something said in the jury room about extracts making a man drunk, and was of opinion that at the time he heard these statements made the jury had already agreed on the guilt or innocence of the accused. Mr. Hackney, next juror for appellant, testified that he heard a fellow-juror say, after retirement of the jury, that extracts would make a man drunk, because he had imbibed some. Hackney thought the juror saying this was Shumate, and testified: "At least that is the way I understood him." This juror was not certain whether this was before or after the verdict was reached, but was inclined toward the view that it was before. Clinton, the third juror for appellant, testified that he heard a juror say that he had drunk extracts and knew it would make a man drunk, while they were in retirement. He did not know who said it, nor was he able to say whether the jury had made up their verdict or not. Eight jurors testified for the state that they heard no one make any statement in the jury room that he had imbibed extracts and knew it would make a man drunk. *Page 100 In this connection we observe that the uncontradicted testimony in the statement of facts shows that the extract in question was capable of producing intoxication and two witnesses testified they had seen men drunk from drinking it. No witness testified that it was not intoxicating. This being the state of the case, we fail to see how the statement of a juror during retirement — even if made — to the effect that he knew extracts would make a man drunk because he had imbibed, could injure the rights of the appellant. His sole defense in the case was that he did not possess it for the purpose of sale; that he had been selling it, but his place had been visited by officers before the time in question, and he had then been informed by said officers that it was illegal to sell the extracts, and he claimed to have withdrawn them from sale, and that he was holding them simply for the purpose of getting his money from those from whom he bought same at a time when he thought he had the right to sell said extracts. We must perceive that there were two issues arising upon the testimony heard in connection with the motion for new trial which were left in doubt, viz.: the materiality of the disclosures in the jury room, and also the question as to whether the jury had arrived at a verdict before said disclosures, if any, were made. We do not think the record reflects any abuse of the discretion of the trial judge in refusing a new trial upon the showing made.
Appellant also seriously contends in his motion that the evidence does not sufficiently support the verdict. The record shows that appellant at some time prior to that here charged, was engaged in the sale of extracts which were capable of producing intoxication. He claimed that because the officers informed him of the character of such liquor, he withdrew it from sale, and that he at no time thereafter possessed it for purposes of sale. He said that at the time the officers came to his place he had the extracts upon the shelves, but took them and put them away in his smokehouse. He admitted the receiving of a quantity of such extracts after the visit of the officers, but claimed that he also put these extracts so received away and did not sell any of it. Looking to the state's case, we observe that in addition to the fact that the officers found in and around appellant's premises a large number of empty extract bottles, and found in his smokehouse in a large container and covered with bran, nearly 600 bottles of said extract, the state also introduced a witness who testified that he bought from appellant a number of bottles of extract, most of which he drank, and that at the time he bought it the extract was *Page 101 not on the shelves, and that appellant had to go out somewhere and get it. We are not disposed to believe the record so bare of evidence supporting the verdict as to justify us in setting aside the conclusion reached by the jury.
Appellant again renews his complaint of the argument of the State's Attorney. The argument complained of is quoted in the original opinion. We are not impressed with the seriousness of the objection. The bottles containing the liquor alleged to have been possessed by appellant for purposes of sale were in evidence and, according to the testimony, showed upon the label the quantity of alcoholic content. In the argument objected to, the State's Attorney referred to the liquor as "damnable peach extract containing 54 per cent alcohol." We do not believe the argument unwarranted by the evidence.
Being unable to agree with appellant's contentions, the motion for rehearing is overruled.
Overruled.