The State files a motion for rehearing, and upon more mature consideration we believe we erred in our former opinion reversing this case upon the ground that the jury received other evidence than that given upon the trial. The record shows that five jurors testified upon the hearing of the motion for new trial. They were in accord upon the fact that the alleged improper statement was made after the entire jury had agreed that appellant was guilty and were discussing her punishment. There is no dispute over the fact that a majority of the jury were for one year and ranged from that up to five, it appearing that upon one ballot there were nine for one year, one for two, and one for two and a half, and one for five. Mr. Webb, a juror who was for one year, made the statement that appellant had been convicted in the Federal court. Immediately the foreman stopped him and said that had no right, they *Page 204 could not consider that, it was not evidence. No details were given, nor was there any statement made apparently of the offense for which conviction was had. The juror Webb said that they gave him no time to make any further statement, they cut him off. The matter was not again mentioned or further discussed except that several jurors at the time stated that this must not be considered or discussed. Subsequently the jury agreed upon fifteen months as the penalty. Was this such violation of subdivision 7, of Art. 837, Vernon's C. C. P., as calls for reversal? No hard and fast rule can be laid down by which all cases are to be measured, for no two cases are alike on the facts; this proposition is amply illustrated by the decisions of our own court on this very question. We deem it unnecessary to cite those presenting divergent views, but beginning with the case of Jack v. State, 26 Tex. 4, it is said that in order to secure a new tral for misconduct of the jury, it must be shown to be such as likely affected the fairness of the trial. In Austin v. State, 42 Tex. 359, — considering subdivision 7 of Art. 837, — it is stated that it must be shown that the defendant has not received a fair and impartial trial by reason of such misconduct in order to justify reversal. Anschicks v. State, 6 Texas Crim. App. 538, considering the same subdivision, reaches the same conclusion. Cox v. State, 7 Texas Crim. App. 1, contains the statement that it must affirmatively appear that there was some reason to suppose that wrong or injustice might have resulted to appellant, in order to justify a reversal of the case. In Allen v. State, 17 Texas Crim. App. 645, discussing misconduct based on said subdivision 7, Judge Willson declined to reverse because of "the absence of circumstances tending to show that it had influenced the verdict of the jury." We quote from Jack v. State, 20 Texas Crim. App. 660, because of similarity upon facts to the instant case:
"It further appears that said statement was not made by said juror until after the jury had agreed upon a verdict of guilty, and that several of said jury, before said statement was made, were in favor of fixing the punishment at three years' confinement in the penitentiary, and some were in favor of making it four years, while two were at first in favor of making it two years. It very conclusively appears from the testimony of the jurors, that the statement complained of did not and could not have influenced the verdict upon the question of defendant's guilt, and it is also clear that the jurors who heard the statement were not influenced thereby in assessing the punishment. It is well settled in this State that misconduct of the jury will not be ground for a new trial, unless it is shown to be such as has affected the fairness and impartiality of the trial." From Cox v. State, 28 Texas Crim. App. 95, we quote:
"A mere statement made by one juror to another or his fellows in reference to the character of the defendant is not per se ground for *Page 205 a new trial. Austin v. The State, 42 Tex. 355. And unless the verdict was probably influenced by the statement of a juror to his fellows as to the character for credibility of a witness for defendant, a new trial will not be granted on that ground."
In Hendricks v. State, Id., 417, Judge White says:
"Amongst the various enumerated statutory causes for a new trial set forth in article 777, Code of Procedure, the seventh subdivision is 'where the jury, after having retired to deliberate upon a case, have received other testimony,' etc. This statute in this particular has always been construed to mean that the testimony or other matter received by the jury after their retirement, in order to demand the granting of a new trial, must be such as would probably influence the verdict."
In Ray v. State, 35 Tex.Crim. Rep., this court said that the statement by a member of the jury to the others, that the defendant had previously been in the penitentiary, will not, in the absence of a showing that the remark prejudiced the defendant, be ground for reversal. In Morrison v. State,39 Tex. Crim. 523, it is held that before a case will be reversed for the making of a statement to the jury that a former jury had given the accused twenty years, some prejudice must be shown, and that the mere statement of such fact might not have caused prejudice. The court says: "The bare statement that a former jury had tried the case and rendered a certain verdict would not ordinarily cause reversal." In Smith v. State, 52 Tex.Crim. Rep., discussing a reference to a former conviction, Judge Ramsey said:
"We think the true rule is that where, as in this case, the testimony supports the verdict, and the charge of the court properly submits the case to the jury, that a verdict ought not to be set aside for every incidental and casual mention of a former trial or a former conviction, and that in no case should it be set aside in a case tried according to law where the conviction is supported by the testimony, unless the court may fairly and reasonably see in the light of all the circumstances that such reference and discussion did or might have prejudiced the appellant's case. It is possible that there is some language in some of the decisions not wholly in accord with the views here expressed, but on full consideration this is believed to be the correct rule, and tested by this rule we believe appellant is without just ground of complaint."
The subject is discussed at length and the authorities referred to in McDougal v. State, 81 Tex.Crim. Rep. and the conclusion there reached that the discussion by the jury was harmful to the accused. See also McKenzie v. State, 260 S.W. Rep. 585.
We find expressions in opinions of our court where the subject-matter involved was clearly sufficient to call for reversal, which seem to *Page 206 go beyond the doctrine of the earlier cases, and beyond what we think should be the true rule as laid down perhaps as well in the Smith case, supra, as any other. Such we believe to have been our expression in Gilbert v. State, 215 S.W. Rep. 110, in that part of the opinion on rehearing where we said that the question for us is "Did the jury after its retirement receive other testimony than that given on the witness stand? If this question be answered affirmatively we we must reverse the case." The testimony set out in that case clearly reflects the fact that injury to the accused was likely to have resulted from what was said in the jury room, but the above expression went too far and is not in harmony with what we believe ought to be the rule. In Weaver v. State, 210 S.W. Rep. 698, the facts seem to show injury resulting from statements made in the jury room which were material, and the case was a capital one, in which event we are inclined to liberally construe the rules applicable in ordinary cases.
We think that when an infraction of the law as contained in subdivison 7, Art. 837, C. C. P. is shown, there still remains the question to be decided from the whole record as to the materiality and likelihood of injury resulting therefrom, and that unless sound reason and judgment accord with the view that by what was said and done in the jury room, the fairness and impartiality of the trial was, or probably was, affected, — the case should not be reversed for such reason. We have concluded that in the instant case the statement by the juror Webb was but the casual statement of a matter which was promptly suppressed and not considered, and that it was not of that character as to materially affect the fairness and impartiality of the trial, and that we erred in reversing the case therefor. We are not to be understood as establishing any rule in this regard, different to that laid down in McDougal's case, supra.
The other questions raised in this record and not passed upon originally are, first, the refusal of a postponement asked for by appellant because of her husband's illness and the fact that he was a material witness for her. This complaint is not supported by any bill of exceptions and, therefore, cannot avail appellant. See authorities collated at pp. 529-30 Vernon's Annotated C. C. P. For the same reason we cannot appraise appellant's complaint of hearsay evidence claimed to have been given by witness Mercer.
The State's motion for rehearing is granted, the reversal set aside and the judgment is now affirmed.
Reversal set aside and judgment affirmed.
ON MOTION FOR REHEARING.