Appellant was charged in two counts: First, with the illegal sale of intoxicating liquors; and, second, for maintaining a nuisance in connection therewith. He was convicted and sentenced upon the second count.
Upon the trial he denied that the liquor kept by him and sold was of an intoxicating character, and that he kept for sale or sold intoxicating liquors at the place charged. Evidence was introduced and considered upon these points.
In support of a motion for a new trial it was shown by the affidavits of several of the jurors that while the jury were deliberating upon their verdict one of them stated in the presence and hearing of the others: “I know it was beer that the defendant was selling there,” referring to the place where he was charged with maintaining nuisance, “because I drank some of the stuff myself.” Again: “I know that he sold intoxicating liquors as charged; that is the business he is in; he has followed it for years.” It was further shown that thereafter the jury, which had stood largely for acquittal, agreed to a conviction. A new trial was refused notwithstanding this showing. In this we must hold the court erred. (The State v. Burton, 65 Kan. 704, 70 Pac. 640; The State v. Rambo, 69 id. 777, 77 Pac. 563.)
The judgment of the court below is reversed, and the cause remanded for further proceedings.