*181ON MOTION FOR REHEARING.
HAWKINS, Judge.The State has filed a motion for rehearing calling attention to the rule governing where the claim is made on motion for new trial that a prejudiced juror sat in the case, referring to Sec. 565, p. 288, Branch’s Ann. Tex. P. C., and citing a number of authorities applying said rule. The principle stated was recognized in our original opinion. The application of the principle to the facts developed upon the hearing of the motion is the troublesome question here. We have again carefully reviewed such facts. Neither of the two young men who testified upon the hearing were shown to be particular friends of appellant, or particularly interested in what became of his case. They noticed a juror had been accepted, whom according to their evidence, they had heard make statements about the case which did not comport with one who was an impartial juror. They did not report the matter to the attorneys for appellant, nor seemed to have made it known for the purpose of securing a new trial for him, but what they said about it reached appellant’s attorneys, and the matter then became a subject of inquiry. The little school girl who testified that on more than one occasion on the school bus she heard the juror talking to the young lady school teacher about appellant’s case lends color to the evidence of the young men. Although the little girl did not understand what was said between the juror and the teacher, yet she was positive appellant’s case was the subject of the conversation. The teacher made no affidavit regarding the matter, but when the juror understood that she had done so he immediately went to see her about it. His version of the conversation with her at the time has been construed differently by attorneys for the State and appellant. She was not present at the hearing on the motion. The juror had been placed in such position that the State could ill afford to be without her testimony regarding the conversation asserted to have occurred between her and the juror on the bus. From the whole record we are still in such doubt about the matter that we have not been able to conclude that our original opinion was erroneous.
The motion for rehearing is overruled.
Overruled.