The appellant was convicted in the District Court of Hill County for the offense of selling intoxicating liquor and his punishment assessed at confinement in the penitentiary for a term of one year.
The State's testimony was sufficient to show a sale, perhaps, if taken alone. Her only witness to the fact of the sale, however, *Page 97 admitted that he was under the influence of liquor at the time he is supposed to have bought the liquor in question, and frankly admits that he was hardly in a condition to remember what really happened on the occasion. The appellant's testimony was to the effect that no sale was made and he was supported in this statement by the testimony of another witness, who was indisputably at the home of the appellant at the time the sale is alleged to have taken place.
The appellant complains because the court refused him a new trial on account of the misconduct of the jury. Three of the jurors testified for the appellant and the substance and purport of their testimony was to the effect that before the verdict was reached and while some jurors were voting for an acquittal, the remark was made that the defendant was one of the worst bootleggers there was around Itasca. And it was also in testimony that it was mentioned several times that the defendant was a bad character and a discussion was had about a difficulty between the defendant and the sheriff of Hill County. It seems clear from the record that these matters were mentioned several times in the jury room and that the mention of them was more than a mere casual reference. The state placed some members of the jury on the witness stand on the motion for a new trial, and they testified that they did not hear the above statements made in the jury room. We think it a fair statement of the record to say, however, that no juror denied that such statements were made and no juror denied that such statements were discussed by those members who claimed to have heard and discussed them. The full substance of the testimony of the jurors testifying for the State was to the effect that they heard no such statements, but each juror admitted that such statements may have been discussed and not heard by him. It is well settled in this State that a mere casual reference to a matter not in evidence in the jury room will not afford grounds for a new trial. Gutierrez v. State, 272 S.W. 780. But we think the record in this case shows more than a casual reference to the matters complained of, and the evidence being sharply conflicting as to appellant's guilt, we hold that the court should have granted a new trial on account of the misconduct of the jury. Franks v. State, 272 S.W. 451; Dunn v. State, 161 S.W. 467; Williams v. State, 136 S.W. 1071; Hall v. State, 106 S.W. 379; Hargrove v. State, 99 S.W. 1121.
Believing that the learned trial judge was in error in refusing a new trial on account of the misconduct of the jury, it is *Page 98 our opinion that the judgment should be reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.