Appellant admits that in the disposition of some of his bills the court is not without authority in following Craft v. State (Tex.Crim. Rep.), 295 S.W. 617. He insists, however, that the opinion in the latter case is wrong. It is our conviction that such opinion is fortified by the many authorities cited in support of it. So believing it has been directly followed in Jenkins v. State (Tex.Crim. Rep.), 299 S.W. 642; Laake v. State (Tex.Crim. Rep). 299 S.W. 643. To reopen a discussion of the question would be profitless.
One ground of appellant's motion for new trial was the alleged misconduct of the jury. The bill preserving this point was not numbered and was not copied in the transcript in connection with the other bills, but was inserted some twenty pages further on. Because of this it was entirely overlooked in the original consideration of the case. The bill certifies that no evidence was before the jury showing that appellant had never been charged with a prior offense; that no evidence was introduced to contradict his own testimony to the effect that he had never handled whisky in any way; that this was the only charge ever made against him; that he had never been arrested in any other case nor charged with violation of the liquor law in Randall County or anywhere else. It is further certified that *Page 676 during the cross-examination of appellant the District Attorney asked if he had not theretofore had about 105 gallons of whisky in Randall County, which appellant denied. No objection was interposed to the question. It is apparent from the testimony of the jurors given on the hearing of the motion for new trial that the discussion in the jury room on the question of the punishment which should be assessed became heated, some anger was displayed and harsh words indulged in. One juror who seemed to be the leader of the ones who were insisting upon a low penalty testified that he heard a statement from two jurors to the effect that appellant had been caught before, and that the foreman of the jury said he had heard that this was the same fellow who was caught with 105 gallons out in a hay stack. The version of the foreman was that some jurors made the remark that the District Attorney must know something more on appellant than was brought out in the trial because of the question he asked, if appellant had not been caught in Randall County with 105 gallons of whisky. Save the testimony of the one juror already referred to, that of all the others may be stated, in substance, to have been that when the jurors who favored a low penalty asserted there was no evidence before them which showed other than that this was appellant's first offense, those jurors who were insisting upon a high penalty replied that there must be other charges against him else the District Attorney would not have asked him about the Randall County matter. When fairly considered we are impressed with the idea that the examination of the jurors indicated the reception of no additional evidence but a discussion by them of an incident of the trial and their conclusion therefrom. If there had been objection to the inquiry by the District Attorney in regard to the Randall County incident, followed by the jurors' argument and conclusions, appellant would have had a more tangible basis for insisting upon a reversal. This court under the circumstances would scarcely be justified in predicating a reversal upon the reference by jurors to something which occurred during the trial, not objected to at the time, and no subsequent request for instruction that the jury disregard it.
"* * * It is within the judicial discretion to overrule a motion for new trial based on the claim of misconduct of the jury and the action of the trial court will not be overturned on appeal unless it be shown to be clearly wrong. Douglas v. State, 58 Tex.Crim. Rep.; Vernon's Tex.Crim. Stat., Vol. 2, p. 792; Watson v. State, 82 Tex.Crim. Rep.; Alexander *Page 677 v. State, 84 Tex.Crim. Rep.; Reese v. State, 87 Tex. Crim. 245; Bernard v. State, 87 Tex.Crim. Rep.."
Todd v. State, 93 Tex.Crim. Rep.. Applying the foregoing rule to the present instance, we would not feel authorized in concluding that the court's action in overruling the motion for new trial was erroneous. The argument of the jurors that appellant "must be a wholesale bootlegger" and therefore his punishment should be increased, does not seem unauthorized by the facts in evidence as to the amount of liquor which appellant is claimed to have been handling on the occasion out of which the present prosecution developed.
We have examined the authorities to which we were referred in the original brief and we think none of them, nor that of Holland v. State, 298 S.W. 898, cited in appellant's supplementary motion, presents a parallel case.
The motion for rehearing is overruled.
Overruled.
ON REQUEST FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.