APPELLANTS’ MOTION FOR REHEARING.
DAVIDSON, Judge.
By motion for new trial, appellant claimed jury misconduct. Three assignments alleged jury separation, each claimed to have occurred in violation of the provisions of Art. 623, C. C. P. prohibiting the jury to separate. Another assignment claimed that the jury drank intoxicating liquor during the progress of the trial and before verdict had been reached The motion requested that the jurors be summoned in order that evidence might be heard upon the allegations of the motion.
Upon the hearing of the motion, three of the jurors testified. It would serve no useful purpose to detail the testimony of the jurors touching the assignments of the motion for new trial above mentioned. It is sufficient to say that facts did not establish either jury separation or drinking of intoxicants, as charged. However, during the examination of the jurors, the juror Freís testified as follows:
“Yes, sir, I said I was taken on Monday afternoon. After court adjourned Monday afternoon and from that time until Tuesday morning a fellow from Yorktown, I believe, I believe Bumba they call him, was in charge of the jury. They all called him Bumba. Yes, sir, Herman Bumba. He was with the jury panel all that afternoon and that night ”
These are the only facts touching thereon and are not denied. The record does not reveal who Bumba was — that is, whether he was such an officer as was authorized to be and remain with the jury during the trial or to be in charge thereof.
*336Appellant takes the position in this court that such facts show or raise the issue that an unauthorized person was present and conversed with the jury during the trial, in violation of Art. 671, C. C. P.
A determination of this contention depends, primarily, upon whether the question is properly before us for consideration.
It will be noted that the motion for new trial contained no allegation or assignment by which it could be said that appellant was insisting that a new trial should be granted upon the jury’s misconduct, as now insisted upon.
A motion for new trial is not necessary to secure or present for review in this court errors claimed to have occurred during the trial of the case and properly presentable and reviewable only by bills of exception or exceptions or objections made and reserved during the trial. A different rule exists, however, when a new trial is sought upon matters occurring or arising dehors the trial proper, such as jury misconduct as here presented. As to such matters, a motion for new trial is necessary. An essential element of such a motion is that the matter of error relied upon for a new trial must be specifically set forth therein. Art. 756, C. C. P.; 4 Tex. Jur., p. 106, Sec. 70; Tex. Jur., p. 300, Sec. 97. The wisdom of that rule lies in the fact that reasonable notice should be given not only to the trial court but the State, as well, as to the misconduct relied upon and to prevent a purely fishing expedition on the part of the accused.
The rule stated is applicable and controlling here, for the motion for new trial contained no allegation that jury misconduct occurred in the particular now asserted. Indeed, after the evidence had been adduced, the motion for new trial was not amended so as to incorporate therein an assignment that an unauthorized person conversed with a member of the jury during the trial. So far as this record reveals, there is nothing to show that the trial judge had notice of or knew that appellant was claiming that a new trial should be granted by reason of the testimony showing that Herman Bumba was with the jury and in charge thereof during the trial.
Not having incorporated in the motion for new trial an assignment or otherwise acquainting the trial court with the fact that appellant was claiming jury misconduct in the particuiar mentioned, the question is not before us.
Accordingly, appellant’s motion for rehearing is overruled.
*337The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.