The motion for rehearing questions the soundness of our original opinion in holding a reference by one of the jurors to the number of years assessed against accused by a former jury not such misconduct as called for a reversal.
We concede that if the court had passed upon the motion for new trial with only the affidavits of jurors White and Pogue as attached to the motion before him the law as announced in previous opinions of our court would have demanded the granting of a new trial. But the testimony of White taken upon a hearing of the motion (which is sufficiently set out in our original opinion) modifies his affidavit and asserts that no reference was made by him to the former punishment until after an agreement as to guilt had been *Page 519 reached, and after a vote had been taken on the punishment, when eleven voted for ten years and he only had voted for five years. It is true juror Pogue testified as follows:
"In the jury room there was something mentioned about the punishment assessed at a former trial. I do not know whether that was before or after I voted on the punishment once, and that vote stood eleven for ten years and one for five years, but I think it was just before."
If the record was before us with only the affidavits and testimony of jurors White and Pogue it would present a condition where one juror had sworn the reference to the former punishment came after the vote on that issue, and another juror that in his best judgment it happened before the vote was taken. But the evidence of the juror Clayton must not be overlooked. He testified:
"I heard some man make a remark to another in the jury room about the punishment assessed at the former trial; that was after we had voted once and the jury at that time stood eleven to one, eleven being in favor of ten years and one was in favor of five. We had agreed at that time that he was guilty. Mr. White is the man that stood out for five years.
Thus we have ample evidence before the trial court to authorize a finding that the reference to the former punishment was not made until after eleven jurors had voted for ten years, and then by White the only one who had voted for five years. So far as the record shows White was the only juror who had previous knowledge of the former verdict carrying ten years punishment and with such knowledge he alone voted at first for five years. No juror argued that White should change his vote from five to ten years because a former jury had fixed such term.
In this condition of the record we believe the learned trial court was not in error in refusing a new trial, and that our opinion announced a proper disposition of the case.
The motion for rehearing is overruled.
Overruled.