It is a general principle of law that the verdict of a jury may not be impeached by the affidavit or sworn statement of a juror. Weatherford v. State, 31 Tex.Crim. Rep.; Ulmer v. State, 71 Tex.Crim. Rep.; Pilot v. State, 38 Tex. Crim. 515; Henry v. State, 43 S.W. Rep. 340; Montgomery v. State, 13 Texas Crim. App. 74; McCane v. State, 33 Tex. Crim. 476; Johnson v. State, 27 Texas Rep. 758. In Art. 837, C. C. P., it is said:
"New trials, in cases of felony, shall be granted for the following causes, and for no others:"
In other parts of the statute various matters are enumerated. The interpretation of these provisions of the statute, so far as the writer is informed, has been that when the averment is that a specific act prohibited by statute has taken place, such as the decision by lot, the receiving of other testimony, the drunkenness of a juror, or conversation with outsiders is the inquiry, the jurors in many cases are the only persons available from whom this information may be obtained, and subdivision 8 of Art. 837, expressly authorizes the receipt of the affidavit of the juror in proof of such matters. These are made imperative reasons for a new trial unless he absence of injury be shown. See McDougal v. State, 84 Tex. Crim. 424. In the eighth subdivision of the statute, however, which refers to the misconduct of the jury, the inquiry relates to some undefined misconduct which is recognized as sufficient to vitiate the verdict. To determine whether it is of such character, the discretion rests generally with the trial court. In addition to the authorities above *Page 298 cited are Patterson v. State, 63 Tex.Crim. Rep.; McCulloch v. State, 35 Tex.Crim. Rep.; Hamilton v. State, 64 Tex.Crim. Rep..
In the present case, it is not any of the specific things mentioned in the statute as cause for new trial upon which reliance is had, but it is in substances the disobedience or disregard of that phase of the court's charge in which the jury was instructed to give consideration alone to the first count of the indictment. Preliminary to a discussion of the merits of this contention, it is well to bear in mind the fact that the indictment is a part of the trial for a felony and one of the papers which the jury is expressly authorized by statute to take with them in their retirement. See Art. 751, C. C. P. It is not essential, however, that the jury have the indictment. Schultz v. State, 15 Texas Crim. App. 258. In the present case, before the jury retired, if it was deemed desirable that the second count in the indictment be withheld from the jury, a request to the court would probably have brought about that result. At all events, if the request had been made and refused, and exception reserved, certainly the appellant would have been in a far better position to complain of the misuse of the second count of the indictment in their retirement. In the case of Cook v. State, 4 Texas Crim. App. 265, upon an indictment delivered to the jury, there were indorsed two verdicts of guilty rendered on the previous trial. Complaint was made of this in the motion for new trial. The court, in affirming the case, said:
"It was certainly the duty of defendant to have made his objection at the time, or before the indictment was given to the jury, so that the court might have had them furnished, if necessary, with a certified copy of the indictment, omitting the indorsements."
This principle was re-asserted in Anschicks v. State, 6 Texas Crim. App. 524; see page 536; also Harvey v. State,35 Tex. Crim. 545, see page 560.
As we conceive it, having made no request of court to withhold the second count from the jury in their retirement, the appellant is not in a position to make complaint that it was not withheld. As the record is presented, it obviously went to the jury with his acquiescence; and he was also aware of the fact that the court had instructed the jury that that count in the indictment was not to be considered. In Johnson's case, 27 Texas Rep. 769, touching a like contention, the Supreme Court of this State, when it had jurisdiction of criminal matters, used language which we quote:
"In connection with the objection to the charge, it is insisted that it was, in fact, misconstrued by the jury, and in proof thereof the affidavit of three of the jurymen was presented to the court on the motion for the new trial. Aside from the fact that this is not recognized by the code as a ground for a new trial, we may say *Page 299 that no case has yet occurred in which such affidavits have been tolerated in the courts of this state for the purpose of impeaching a verdict. And when we consider the wide door which would be thereby opened for improper practices, we would hesitate long, and feel ourselves constrained by imperative necessity for accomplishing the ends of justice, before we could give our sanction to such a practice. Although a few isolated cases may be found in which such affidavits have been received, the better practice seems to have been established in most, if not all the states except Tennessee, to reject them. The question has been before this court heretofore on more than one occasion, and it has been uniformly decided adversely to the appellant. (See Little v. Birdwell, 21 Tex. 612; Kilgore v. Jordan, 17 id. 341.)"
Illustrative of the general rule and the reasons therefor, we refer to Ruling Case. Law, Vol. 27, p. 896, sec. 68. Touching the subject in hand, the following quotation is taken from Todd v. State, 93 Tex.Crim. Rep.:
"By virtue of our statute on motions for new trial, Article 837, subdivisions 7 and 8, Code of Crim. Proc., and its interpretion by decisions of this court, the scope of the rule of public policy announced in the text is much restricted in its application in this State. This is illustrated by many cases. See Mizell v. State, 81 Tex.Crim. Rep.; Weaver v. State, 85 Tex.Crim. Rep.; McDougal v. State,81 Tex. Crim. 183; Gilbert v. State, 85 Tex.Crim. Rep.. Notwithstanding its modification, the rule has not been abrogated entirely, and when it does not run counter to the statute of this State, as interpreted by the decisions of its courts, it still operates."
From the case of Jack v. State, 20 Texas Crim. App. 660, we take the following:
"It seems to us that it would be dangerous and exceedingly pernicious practice for the courts to permit the sanctity of the jury room to be invaded, and jurors to be interrogated as to the arguments used in their deliberations, and the influence of such argument upon their minds, and the reasons and considerations upon which their verdicts were based. There might arise, perhaps, an extreme case in which such a practice would be tolerated to prevent flagrant wrong and injustice, but this court would not be willing to sanction the procedure unless it should manifestly appear that the ends of justice imperatively demanded it."
In the opinion of the writer, the question presented in the present case was determined against the appellant in Johnson's case, supra, and others to which reference has been made; that is to say, the true basis of the appellant's contention is that the jury in their deliberations were not governed by the directions of the court in its charge to ignore the second count of the indictment, to prove which, *Page 300 under the authorities mentioned, would be an impeachment of the jury, which the law does not permit. See Esquivel v. State,93 Tex. Crim. 125.
The motion for rehearing is overruled.
Overruled.