A rehearing is asked on several grounds. The only point that would seem to require specific mention is that which refers to the alleged misconduct of the jury in considering the improper question of the prosecuting attorney as to an alleged shortage in the accounts of a former county assessor. In this respect it is argued that State v. Boykin and State v. Abbott, supra, merely announce a rule of evidence with respect to proving the misconduct of a jury; and that where such affidavits are before the court, without objection, they should be considered. *Page 574 The prosecuting attorney objected to consideration of the affidavits. The court reserved its ruling and denied a new trial without specifically passing on the objection. Appellant contends that, since the prosecuting attorney made no further effort to secure a ruling, his objection to the affidavits must be deemed waived.
Under the facts, the prosecuting attorney will not be deemed to have waived his objection to the consideration of the affidavits offered by appellant; and, under the circumstances, under the rule announced in the Boykin and Abbott cases, the trial court should not have considered them. As to the affidavits offered by the state, conceding without deciding that it was proper to consider them, clearly they do not show such misconduct as to require a new trial.
Rehearing denied.
Budge, Givens and Taylor, JJ., concur.
T. Bailey Lee, J., did not participate in the decision on rehearing.