Appellant insists that the evidence developed upon the motion for a new trial supports his averment that in its retirement there was brought to the jury extraneous matters prejudicial to the appellant and that it was also revealed that one of the jurors was not impartial. In the motion it is claimed that while the members of the jury were equally divided touching the guilt or innocence of the accused, that juror Lang made the following remarks:
"That all the damned Mexicans made whiskey, and that if they had brought in every Mexican woman from the river to Nacogdoches, that they had seen the defendant go by their house afoot about sundown and that if the jury turned the defendant loose, he would do like all the rest of the damned Mexicans, go right back to bootlegging."
The court heard testimony from all of the jurors who sat in *Page 618 the case. Two or three of them gave testimony in whole or in part supporting the averment mentioned. Others either denied the truth of the averment or stated that the remarks, if made, were not made in their hearing. Lang testified, categorically denying the use of the language mentioned, and also denying hearing any other juror make such expressions. He admitted that he did state that he "did not give the Mexican witnesses much belief;" that he did not pay much attention to the story of the Mexican woman there and did not give it much credibility. It seems manifest that the truth of the averment in the motion was a controverted question, that is, the evidence was conflicting touching its truth. Under such conditions, the finding of the trial court is binding here. See Ballew v. State, 97 Tex. Crim. 325; Watson v. State, 82 Tex.Crim. Rep.; Reese v. State, 87 Tex.Crim. Rep.; Barnard v. State, 87 Tex. Crim. 365; Kirby v. State, 96 Tex.Crim. Rep.; Dyer v. State, 282 S.W. 820; Henderson v. State, 282 S.W. 497. The mere fact that the juror stated that he did not give credit to the Mexican witnesses would not warrant a new trial. It was merely the estimate which the juror placed upon the credibility of the witnesses, a matter which the statute places definitely within the scope of the jurors' decision. See Honea v. State, 103 Tex. Crim. 242.
The fact that the trial court gave forms of verdict in the absence of something in their nature or some showing which would suggest prejudice to the accused, none of which appears in the present case, there is no just ground for complaint. See Smith v. State, 280 S.W. 200; Hickox v. State, 95 Tex. Crim. 173.
The motion is overruled.
Overruled.