On a former appeal in this case, judgment of conviction was reversed for insufficiency of the evidence. (13 Texas Ct. App., 333.)
Motion for a new trial was made in the court below, based upon two grounds, amongst others, which we propose to notice, viz: 1, misconduct of the jury; 3, insufficiency of the evidence.
With regard to the misconduct of the jury, two affidavits appear of record, in one of which the juror states, in effect, that he was intimidated into consenting to the verdict of guilty, by the charge brought against him by another juror that he, the affiant, had been put upon the jury for the purpose of hanging it. The other affidavit states that the affiants, two in number, agreed to the verdict of guilty because “it was agreed and understood by the jury that the defendant could be, and would, upon the petition of the jury, be pardoned, and that they found him guilty with the understanding that they would all sign such a petition; that the verdict was a compromise one, resting upon the fact of pardon.”
As to the first affidavit, we do not believe a juror should be allowed to impeach his verdict in such manner, and to sanction such practice of impeachment would be both improper and dangerous. (Mercer v. The State, 17 Ga., 175.)
As to the second affidavit, the case of The State v. Walman is directly in point, and therein it was held: “That evidence will not be admitted to show that one of the jurors in a murder case only agreed to the verdict of guilty on .condition that a petition signed by every member óf the jury should be addressed to the Governor, asking that the penalty be commuted from death to imprisonment for life.” (31 La. Ann., 146.)
We are of opinion that the court did not err in overruling the motion for a new trial, based upon the supposed misconduct of the jury.
On the other hand, we are of opinion, however, that the evi*76dence is wholly insufficient to support the verdict and judgment of conviction. As shown by the record, the evidence is not materially different from what it was on a former appeal. If there be any at all, it is that the State’s case is not as strong now as it was then.
Because the evidence is insufficient, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered October 21, 1882.