dissenting.
I agreed to the affirmance of this case because I was not convinced that appellant was injured by the argument of state’s counsel or by the alleged jury misconduct.
Upon reconsideration, I am of the opinion that such conclusion was not warranted as to jury misconduct, but, to the contrary, a fair construction of the evidence shows that appellant was injured by the misconduct of the jury.
The juror Crow testified, upon the hearing of the motion for new trial, that he reached the conclusion early in the deliberations of the jury that appellant was not guilty, and so voted through some four ballots of the jury upon the guilt or innocence of the appellant.
The witness thereafter agreed to a verdict of guilty, whereupon there arose the question of suspension of sentence, which he favored.
Here is what the juror said occurred while the jury was deliberating the question of suspended sentence:
“ [Q] I’ll ask you if there was any statement made to you and the other jurors by any member of the jury with reference to how much time the defendant would have to serve in the event the jury found him guilty and assessed his punishment at two years? A. There was.
“ [Q] Tell the jury what statement was made — tell the court what statement was made to you and the other jurors with reference to how much time the defendant would have to serve if the jury found him guilty and set his punishment at two years? A. About six months.
“ [Q] Do you recall who made that statement, Mr. Crow? A. It was the jury foreman.
“ [Q] Foreman of the jury? A. Yes, sir.”
As to the impression the statement left with the juror, he testified:
“ [Q] Well, based on that statement then, — he confines it *604— based on the statement that the foreman of the jury made that he would only have to serve — you say you were convinced that he wouldn’t have to serve but six months — based on that, was that the reason you changed your vote to not suspend the sentence? A. It was.”
The juror was rather extensively cross-examined by the state, as well as by the appellant, upon re-direct examination.
Regardless of the facts above discussed, the record is susceptible of but one construction — which is, that the juror Crow changed his verdict from that favoring suspension of sentence to the assessment of an outright term in the penitentiary because of the statement of the foreman of the jury to the effect that if the jury fixed appellant’s punishment at a term in the penitentiary he would only have to serve about six months.
That such statement by the jury foreman was not, in fact, correct and that it was made not merely as an expression of an opinion but as a statement of a positive fact appears not to be debatable.
But, regardless of the effect to be given the statement, the fact remains that it constituted other testimony which was harmful and prejudicial to the rights of the appellant.
The state did not see fit to call the foreman of the jury to testify concerning his making of the statement.
We do not have, here, a case where two jurors engage in a conversation in which one says that a certain statement was made, while the other denied that it was made. In instances where there is such a dispute, the trial court’s conclusion prevails unless an abuse of discretion is shown.
Here we have the juror Crow affirming that the foreman of the jury made a certain statement to him in his presence. The foreman of the jury was not called to deny or affirm Crow’s statement. Under such circumstance, Crow’s testimony should be treated as undisputed.
Whether the statement was or was not made by the jury foreman, the fact remains, nevertheless, that in so far as the juror Crow was concerned the statement was made, for he heard it, believed it to be true, and accepted and acted upon it as being true — all to the injury and harm of the appellant.
*605So, regardless of whether the statement was or was not made by the foreman of the jury, the fact remains that in so far as the juror Crow was concerned the statement was made and injury therefrom was suffered by the appellant.
Art. 753, C.C.P., provides that new trials in felony cases shall be granted only in certain instances — among which are those set out in Sec. 7, as follows:
“Where the jury, after having retired to deliberate upon a case, have received other testimony; or where a juror has conversed with any person in regard to the case; or where any juror at any time during the trial or after retiring, may have become so intoxicated as to render it probable his verdict was influenced thereby. The mere drinking of liquor by a juror shall not be sufficient ground for a new trial.”
Under that section it has been the long, continuous, and unbroken holding of this court that when it is shown that this provision of Art. 753, C.C.P., has been violated and other testimony has been received, no speculation will be indulged as to probable injury to the accused. Supporting authorities will be found under Note 143 of Art. 753, Vernon’s C.C.P.
The holding in Jackson v. State, 157 Texas Cr. Rep. 323, 248 S.W. 2d 748, appears to be directly in point as supporting the conclusion, here, that the statement made by the foreman of the jury and the reliance thereon by the juror Crow require a reversal of this conviction.
Such is also true of the holding in Mays v. State, 111 Texas Cr. Rep. 35, 10 S.W. 2d 1006, where members of the jury who were for a suspension of sentence agreed to a verdict without suspension of sentence after statements had been made in the jury room during deliberations.
Sec. 7 of Art. 753, C.C.P., however, is not the only statutory provision relative to granting of a motion for new trial by reason of jury misconduct: Sec. 8 provides that, in felony cases, a new trial shall be granted “Where, from the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial.”
All witnesses agreed that during the deliberations of the jury there was a discussion to the effect that, in the event of a *606conviction, the appellant would not be required to serve the term which the jury might fix in its verdict.
It was not within the jury’s province to entertain or discuss such matters in connection with the guilt or innocence or punishment of the appellant.
The juror Crow appropriated what was said to the harm and injury of the appellant.
Crow’s agreement to the verdict was necessary; without his agreement there would have been no verdict.
I am convinced that, under all the facts and circumstances here presented, appellant did not receive that fair and impartial trial which the law guarantees to him.
It is my opinion that because of the misconduct of the jury this conviction must be reversed.
Presiding Judge Morrison is of the opinion that the conviction should be reversed for the reasons stated in his dissenting opinion delivered upon original disposition.
Accordingly, the appellant’s motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause is remanded.