Appellant was convicted of arson, and his punishment assessed at five years' confinement in the penitentiary; hence this appeal.
In the motion for new trial, appellant complains of the misconduct of the jury on two grounds: First, in receiving other evidence after their retirement; and secondly, in discussing the failure of the defendant to testify. With reference to the first of these grounds, it appears from affidavits of some of the jurors that some question arose as to whether or not certain tracks, which were used in evidence against appellant, may not have been made by one Rogge, who lived in that neighborhood, and who was at the house of the prosecutor on the night of the fire. One or two of the jurors who were familiar with the location *Page 86 explained to others of the jury the location of Rogge's house with reference to Dryer's and appellant's, and in that connection drew a plat of the surroundings. This was intended to show that the tracks could not have been made by Rogge in the route he traveled, and was evidence upon a material issue in the case, and was testimony not sworn to by any witness. This was error. Favro v. State, 1 Texas Ct. Rep., 270. It is also made to appear by a number of affidavits that the failure of defendant to testify in the case was mentioned, and a number of jurors testified to this. His failure to testify was explained by one or more of the jurors to the effect that his defense was an alibi, and he was satisfied with the proof made on that point. Another one stated that defendant did not testify because Wandell had testified. All the jurors explained that they were not influenced by this discussion, but it is generally conceded that the matter was alluded to in the jury room, and before they had agreed on their verdict. As has been repeatedly held, our statute on this subject is mandatory; and, when it has been violated, we will not speculate upon any possible injury that may have ensued to appellant. Tate v. State, 38 Tex.Crim. Rep.; Wilson v. State, 39 Tex.Crim. Rep.; Thorpe v. State, 40 Tex. Crim. 346. Notwithstanding the evidence is of a very cogent character, yet, on account of the misconduct of the jury, above discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.