In the motion for rehearing our attention has been called to a very important and serious matter incident to the alleged misconduct of the jury. The bill of exception presenting this issue covers thirty-nine pages in the record. In reading the evidence taken on the hearing of the motion for a new trial our minds became fixed upon that portion of the alleged misconduct which related to a discussion in the jury room of appellant's reputation, and we disposed of the question on that issue alone, not appraising the effect of the other feature of such alleged misconduct as it related to the facts developed on the trial. We are now referred pertinently to another phase of the alleged misconduct, viz.: a discussion in the jury room of a contemplated raid by the officers upon the gambling premises where the homicide occurred, which bears directly upon what we stated in our original opinion as being the pivotal point in the case, as follows:
"The true issue in the case was not whether the officers used undue force in making the arrest, but whether their character as officers was known to appellant at the time he fired. Around this issue the evidence crystalized."
There is no testimony in the case to the effect that any previous raid had been made upon the premises in question by the officers from Iowa Park, or by any other officers; or that any such raid was contemplated. It being the contention throughout on the part of appellant that he had no knowledge whatever that deceased and his companions were officers until after the shooting was over, it can not be questioned that if testimony had been available to the State, whereby it could have been shown that the officers had at a previous time made, or contemplated making, a raid upon the gambling house, or that a raid was still in contemplation, and that appellant and others engaged in gambling at the time of the homicide knew that the officers were likely to raid the premises, it would have been the most cogent testimony possible to controvert the truth of appellant's theory, to-wit: want of knowledge that deceased and his companions were officers, and not "high-jackers" or robbers as appellant asserts he believed they were.
The jury was bound to have known that one of the main issues in the case, if not the most important one, was whether appellant at the time he fired knew deceased was an officer. This issue was submitted *Page 8 to the jury by the court. The evidence taken on the motion for new trial discloses that the jury were not in accord as to the guilt of appellant during the first ballots taken, as they stood six and six upon that issue in the begininng of their deliberations. We find from the bill of exception that R.E. Golden was one of the jurors. The juror Farmer, testifying as to what occurred in the jury room said that Golden, who lived in Iowa Park, said: "You know that Turkett and King was out there the night before and he knew what was coming off." "That he understood from what Golden said that the gamblers knew that the officers from Wichita Falls were coming out there that night; that the boys at Kemp City (where the homicide occurred) knew that the raid was going to be made that night." This was Farmer's version of what Golden said. The juror Reed testified that he heard Golden say something about Iowa Park officers, but just how he said it or what he was getting at he did not remember, as he was talking to the jury in general. J.C. Galbraith, who was foreman of the jury, testified that he not only heard Golden make the general statement testified to by other jurors, but that Golden, in substance, told Galbraith himself practically the same thing; his version of what it was is as follows: "The conversation that I heard in substance was that officers had been up to Kemp City to raid this particular gambling house either the day before the shooting occurred or a day just prior to that, and that these people had got knowledge of it and had left and that they were looking for the officers." This witness further testified that as the foreman he informed the other jurors that they should not consider such "outside matters." The juror Brokaw, upon being asked whether he recalled having heard any conversation of Golden similar to that testified to by other jurors replied: "I heard something similar to that, yes. I remember that something was said about the Iowa City officers." The juror Rouse was asked "Do you recall having heard a conversation similar to that testified to by them?" (that is the other jurors). "Did you hear Golden make any statement along the line they testified to?" "I remember some statement, but do not remember what it was." The further question asked him was, "Did he make any remark about those boys were expecting a raid out there?" to which he replied, "Well, he remarked that was his opinion, that is the way he remarked it, his opinion was they expected a raid." Some jurors testified that they heard no such conversation in the jury room, but it was established beyond question that such matter was discussed. Counsel for the State and the court in examining the jurors seemed to have conceded that some "outside matters" were discussed by the jury, because the jurors were asked if they permitted such "outside matters" to influence them. It is not a question, therefore as to whether improper matters occurred in the jury room which might raise a question of fact to be determined by the trial judge upon a motion for new trial. It is not necessary for us to speculate upon the effect of this new matter being injected during the discussion of the jury. *Page 9
Remembering that the contention of the defense from beginning to end was that when appellant began firing he thought deceased and his companions were "high-jackers" and not officers it is apparent that these improper statements in the jury room were of a prejudicial character. If such testimony could have been produced by the State from the witness stand it would have been of a highly vital and important nature.
The effect of testimony so received after the retirement of the jury has been adverted to in Gilbert v. State, 85 Tex. Crim. 597, 215 S.W. Rep., 106; McDougal v. State, 81 Tex. Crim. 179, 194 S.W. Rep., 944; Mitchell v. State, 36 Tex. Crim. 278; Weaver v. State, 85 Tex.Crim. Rep., 210 S.W. Rep., 698; Blocker v. State, 61 S.W. Rep., 392.
In view of another trial we suggest such changes in the charges discussed in our original opinion as will relieve them of the criticism there reviewed.
The motion for rehearing must be granted. The judgment affirming the case will be set aside and the judgment of the trial court reversed and the cause remanded.
Reversed and remanded.