ON MOTION FOR REHEARING.
KRUEGER, Judge.In his motion for rehearing, appellant insists that we erred in the original disposition of this case in declining to sustain his bill of exception relating to the misconduct of the jury while deliberating on their verdict in this case and also relative to the action of the trial court in declining to hear evidence in support of the allegations in the motion.
We have again reviewed the bill of exception, the motion for new trial, and the order of the court overruling same. The motion shows that the same was verified by the attorney for appellant who states that the facts therein set out are true and correct to the best of his knowledge and belief. No affidavit from any of the jurors is attached to the motion nor is any reason assigned why. such affidavit could not be obtained. It is quite obvious that the attorney for the appellant could not-of his own knowledge have known what occurred in the jury room. He must necessarily have obtained such facts, if any, from some other person. Consequently, what is charged in the motion is based purely upon hearsay. In the case of Hughes v. State, 106 Tex. Cr. R. 550 (553) in passing upon a motion for new trial based on alleged misconduct of the jury, this court, speaking through Judge Morrow said, “It is plain that these are matters about which he could not have testified if an oral inquiry had been made touching the merits of his motion. On the face of the motion, the averments are but hearsay.” The bill of exception recites that appellant had the jurors present in court at the time of the hearing of the motion in an effort to prove the allegations therein, but that the court declined to hear evidence from any of the jurors. The bill of exception fails *271to reflect what the testimony of the jurors would have been had they been permitted to testify. In this respect, the bill is deficient since we cannot presume in the absence of a showing of what they would have testified, to that their testimony would have sustained the allegations based on hearsay. See Branch’s Ann. P. C. page 136.
We see no need for further discussion of the question since the same has been fully discussed in the original opinion. All other matters urged in the motion for rehearing have been considered and found to be wtihout merit.
Believing the case was properly disposed of on original submission, the motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.