ON MOTION FOR REHEARING.
GRAVES, Judge.The State has filed a motion for a rehearing herein, suggesting that we were in error in holding that the State had not discharged its burden in showing that appellant suffered no injury in the communications had by a juror with persons other than the jury during its deliberations.
*93As to the conversation with Ralph Townes, the State placed Townes on the stand, and it seems to us discharged its burden by showing the lack of harm therein as to the conversation with Johnnie Wilkins. None is shown by appellant. It is shown that the juror answered nothing when Wilkins said: “We are going to keep you up there until next week,” but the juror merely smiled.
The main proposition complained of by appellant as misconduct of the juror Finney was his purchase of a newspaper during the noon hour while the jury were just completing their noon meal. The juror desired to purchase a newspaper; the officer in charge of the jury had some one phone the trial judge who said it would be all right for the juror to purchase a paper. The juror who was near -the front door of the- cafe stepped out the door and went to a drug store near by, about 25 feet away, and in the doorway there were some newspapers displayed on a wire rack; he handed some one a coin and picked up a newspaper and returned to the cafe door outside of which some jurors were standing and the remaining jurors were preparing, to come out on the street. The deputy sheriff attending the jury testified that:
“Jack Finney was one of the members of that jury. Yes, he went to the Barrett drug store and bought a newspaper. At the time he went there and bought that newspaper I was in front of the cafe. From where I was standing I was twenty or twenty five feet, I would say — possibly the width of this room— from Jack Finney. He was entirely in my sight at all times; I could see him all the time and from where I was standing I could see the other eleven members of the jury at the same time I saw him. In other words, he was about 20 or 25 feet West of me. The other members of the jury were in the cafe, which was north of me and I could look here at them or look out this way to him. All I had to do was to turn my head; of course if I was looking at him I had to turn my eyes this way, but all I had to do was to turn my. eyes this way, just like this group of people here. Mr. Finney bought a paper at Barrett’s drug store. He didn’t have any conversation with anybody, he wasn’t up there long enough to have a conversation with anybody. He was up there a minute. * * * There was no obstruction between me and' where Mr. Finney bought the newspaper. If he had had any conversation with anybody in an ordinary tone of voice I am sure I could have heard it; he *94walked up there and said T want a paper,’ and handed the man a coin, I don’t know whether it was a nickel or dime or what, but he turned around and walked right back.”
Again he said: “As to whether I testify positive no one could have communicated with Jack Finney while I was there, I can testify no one did, but I don’t know what they could have done.”
The witness Harrison also was sent to the drug store and requested to bring into court the person who sold Finney the newspaper, and the employees answered that no one remembered the occurrence, and of course none could testify relative thereto.
The testimony of some of the jurors showed that Finney was at all times on the trip to the drug store and back within sight and hearing of the deputy sheriff, and some of them knew nothing about it. It is not absolutely necessary that the person with whom the transaction was had should be produced on the hearing, so it seems to us, provided the lack of harm can be shown by other witnesses who heard the purported communication.
We think the State has discharged the burden of showing the harmlessness of this conduct upon the part of the jury, and while the juror doubtless deserves a reprimand, we do not think the same is such misconduct that it should cause a reversal of this case.
Thus believing, the State’s motion for a rehearing is granted, the judgment of reversal is set aside, and the judgment is now affirmed.