The appellant was convicted of manslaughter and given a term of three years' confinement in the penitentiary.
There were several bills of exception reserved, but on account of the fact they were filed too late to be considered, the matters expressed in them will not be reviewed. The amended motion for new trial sets up misconduct of the jury in this, that during their retirement they discussed the fact that appellant had previously served a term in the penitentiary. This is supported by the affidavits of two jurors. These affidavits are rather meager, and it is not stated in either of them that such testimony was not introduced before the jury. If it be conceded that such evidence was not before the jury, then the question is whether or not this is so presented that it requires revision. One of the bills, if it could be considered, recites that the motion was heard by the court and evidence introduced in support of it, but was, by the court, overruled. The judgment of the court also recites that evidence was heard. It would seem then from this bill that evidence was introduced. The record does not contain the evidence which was introduced. If heard by the court, in regard to the misconduct of the jury, the action of the court overruling the motion would not be revised unless the evidence was in some way brought in the record. In the absence of the testimony the presumption is that the court ruled correctly.
In the light of the record as it is presented we are of opinion the judgment should be affirmed, and it is accordingly so ordered.
Affirmed. *Page 271
ON REHEARING. November 14, 1917.