ON STATE’S MOTION FOR REHEARING
MORRISON, Judge.Reconsideration of a companion case (Curtis Lee Adams, No. 33,771), has brought the writer to the conclusion that the offense here shown is also robbery. Lona testified that “Hester said he had a pistol.” Viewed in the light most favorable to the State, such statement was made at the time of the commission of the offense. This, coupled with the acts of appellant and his companions in “herding” the women so as to prevent their flight from the scene, constituted such threatened violence as would support a conviction for robbery.
In our original opinion, we did not deem it necessary to discuss Appellant’s Bill of Exception No. 1. Such now becomes obligatory, and, as I view it, reversible error is reflected thereby. *664Therein it is shown that, while the jury were deliberating, the foreman came to the door and had a private conversation with the judge outside the hearing of appellant or his counsel. At the conclusion of this conversation, the judge then approached appellant and his counsel and informed them that the foreman had asked if the defendant would be given credit for his jail time and that he had assured him such credit would be granted if defendant accepted such sentence as the jury assessed.
This is not a case involving written instructions as required by the statutes and where the judge’s answer is definitely known. The court here clearly violated the terms of Articles 676, 677 and 679, V.A.C.C.P., and orally instructed the jury what, he would do in order to ameliorate any punishment they might assess if they found the accused guilty. In other words, he told them that Article 768, V.A.C.C.P., gave him the power to allow such credit and that he would exercise such authority favorably to the accused. To uphold the action of the court in this case would be in violation of the rule announced in White v. State, 149 Tex. Cr. Rep. 419, 195 S.W. 2d 141, and tantamount to saying that he might privately tell the jury that he would parole the accused if they found him guilty.
My brother McDonald is convinced of the soundness of the original opinion which he prepared for the court, and, for that reason, concludes that the case must be reversed.
Accordingly, since two judges of this court conclude that this case should be reversed, the state’s motion for rehearing is overruled.