We have carefully considered all the matters raised by the motion for rehearing. The facts heard by the court in connection with appellant's effort to get a new trial, leave no doubt of the proposition that almost at once upon their retirement the jury voted him guilty. Some discussion arose as to the penalty. It seems to have been suggested by some of the jurors that if appellant wanted to have his sentence suspended, they would be for a larger penalty. There was no application on file for a suspended sentence. Some one raised the question as to appellant's *Page 205 age, and it appears that it was ascertained that appellant was twenty-four years of age. He was given the lowest penalty.
It appears from the testimony of one of said jurors given on the hearing of the motion for new trial that, based on an expression used by the sheriff in giving his testimony on the trial, they thought appellant had been in trouble before. Some mention was made of this in the jury room. Expressions in an affidavit made by one of the jurors to the effect that but for this or but for that he would not have agreed to a verdict of guilty, would in no event suffice to impeach the verdict of a jury. Before this court can sanction the setting aside of a verdict of a jury, testimony in the shape of affidavits or otherwise must appear in the record, and this court would have to be convinced that such testimony not introduced, but discussed by the jury was of that kind and character which could reasonably have influenced a verdict against the accused. As stated in the original opinion, no testimony was introduced by the appellant. When the jury retired eleven voted at once for conviction, and according to the testimony heard later, the twelfth juror immediately said that he was the one who did not vote for a verdict of guilty, but that he was ready to do so, and immediately did so. No other conclusion could have been reached by the jury save that of appellant's guilt.
The motion for rehearing will be overruled.
Overruled.