Responding to the motion for rehearing, we have carefully considered the testimony of each of the twelve jurors who testified upon the hearing of the motion for new trial, to see if there be evidence of the presence of any illegal factor in the jury's deliberations which might have caused or contributed to the verdict finding appellant guilty and fixing his punishment at two years in the penitentiary.
That in the jury room after retirement the past record of appellant in regard to other violations of law was mentioned, seems beyond doubt. The jurors divided in testimony as to when appellant's past misdeeds were referred to, but a majority seemed to agree that while it may have been after all had voted guilty, — it was before agreement as to penalty. It is in testimony that after agreeing that appellant was guilty, nine jurors were for a penalty of one year and three for two years. The latter penalty was finally agreed upon, which establishes that in some way and by some argument the views of nine men as to penalty were changed. If, as stated, after the vote was first taken on the penalty it was then said *Page 257 by some juror that whether guilty of this offense or not appellant had done enough other things for which he ought to be in the penitentiary, and upon a subsequent vote on the penalty nine jurors had changed to a greater penalty than before, this would at least be persuasive that such statement may have been harmful. Upon more careful scrutiny we are led to believe the record open to the suggestion of injury resulting from such misconduct. We give to appellant the benefit of the probability.
The motion will be granted, the judgment of affirmance set aside, and the judgment of the trial court will now be reversed and the cause remanded.
Rehearing granted and judgment reversed and remanded.
ON STATE'S MOTION FOR REHEARING.