On Defendant’s Motion for Rehearing.
BEAUCHAMP, Judge.Appellant has filed a very comprehensive motion for rehearing in this cause which has been thoroughly considered. Nevertheless, we adhere to the original view expressed as the law applicable to the facts of the case before us.
Article 753, C.C.P., sets out as one of the grounds for granting a new trial the conduct of a juror in conversing with an outside party “in regard to the case.” Appellant asserts that where it has been shown that the mandates of the statute have been violated by outside parties conversing with a member of the jury, the burden is then upon the state to show that no injury occurred. This court has so held and that, doctrine is here adhered to.
However, the appellant’s difficulty arises from the fact that he has not prop-. erly shown such to be the case. Appellant’s motion for rehearing, sworn to by himself, says that “one Hill” was seen conversing with a juror. He further says that Hill was not a member of the jury. It is not shown that they discussed the case. This allegation is not supported by an affidavit and, under a recent line of holdings by this court, it is merely a pleading in the case. Noble v. State, 98 Tex.Cr.R. 463, 266 S.W. 412, and cases there cited; Hughes v. State, 106 Tex.Cr.R. 550, 551, 293 S.W. 575; Purswell v. State, 107 Tex.Cr.R. 121, 294 S.W. 1107; Vyvial v. State, 111 Tex.Cr.R. 111, 10 S.W.2d 83; McBee v. State, 119 Tex.Cr.R. 279, 44 S.W.2d 699; Johnson v. State, 111 Tex.Cr.R. 395, 13 S.W.2d 114, 115; Rollins v. State, 122 Tex.Cr.R. 119, 53 S.W.2d 786.
From the foregoing authorities it will be understood that this court has held that a motion for a new- trial which is required to be sworn to merely becomes the pleading in the case and is insufficient to cast a burden on the state to disprove the things therein alleged.
In the instant case the state controverted the motion by the affidavit of the district attorney, who also excepted to the allegations in Section nine, alleging misconduct of a juror, as being too indefinite and uncertain upon which to admit evidence. If the rules of pleading are to be respected in a motion for rehearing, this exception should have been sustained,
If appellant’s position should be tenable that the state would have the burden of showing that no harm resulted, it would be unreasonable to require the state to proceed on this allegation as it is worded. Neither is it sufficient to give notice of what appellant expected to prove so that the state may be in position to controvert it upon a hearing. The evidence which was introduced on the motion is referred to and properly discussed in the original opinion.
The motion for rehearing is overruled.