The evidence heard on the motion for new trial discloses that the witness Webb stated to the members *Page 207 of the jury during their deliberations that the appellant had been convicted in the Federal Court. At the time this statement was made the members of the jury had not agreed upon the penalty, some favoring one year and some favoring a greater penalty. Fifteen months was the penalty finally agreed upon. When the statement was made the foreman immediately called attention to the fact that the matter was not admissible that it could not be discussed or considered. The evidence on the hearing, we think, shows that it was not further discussed.
In the Code of Criminal Procedure, there is an article declaring:
"The former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument." (C. C. P., Art. 843.)
In the application of this statute, it is established "that a verdict ought not to be set aside for every incidental and casual mention of a former trial or a former conviction." Smith v. State, 52 Tex.Crim. Rep.. In the present case, according to the undisputed evidence upon the motion for new trial, there had been no previous conviction of the accused. The record is one in which the report made by the juror to his fellows that the appellant had been convicted of another offense like the one on trial was untrue.
Was he an impartial juror? If he sought to harm the accused, the means adopted was appropriate, for all men know that on the trial of one for crime, knowledge of a previous conviction is a potent fact against the accused. If the juror made the statement believing it to be true, it cannot be questioned that in his own estimation it was a cogent matter against the accused. Otherwise why did he advert to it? That he did not proceed with its discussion was due to the prompt interruption of the foreman. If it be conceded that the supposed fact had weight with him; and that he reported it so that it might influence his fellows against the accused, how can it be held that he was impartial? Would one whose mind was wholly unprejudiced reach beyond the evidence in the case and bring before his fellows a damaging assertion of fact which he did not know to be true? The juror testified upon the hearing of the motion for new trial but made no effort to justify or explain his reason for making the remark or the information upon which he acted. The evidence given upon the hearing that the statement was untrue was not controverted or questioned. If he was guilty of injurious misconduct, or if he cannot be regarded as an impartial juror, the verdict ought not to stand. It is the verdict of the twelve. On the subject, in Ruling Case Law, Vol. 16, sec. 120, p. 812, it is said:
"The jury being composed of twelve individuals, the misconduct of any juror, actual or implied, by which a fair and due consideration of the case may have been prevented, is misconduct of the jury, *Page 208 because the jury can only act as a unit, and the misconduct of one of the members cannot be eliminated, and therefore in such cases the action of the jury as a whole is invalid."
See also 134 Am. St. Rep., p. 1034. This principle has been sustained by the decisions of this court. See Long v. State,32 Tex. Crim. 145; Graham v. State, 28 Texas Crim. App. 582; McWilliams v. State, 32 Tex.Crim. Rep.; Adams v. State, 92 Tex.Crim. Rep..
In the opinion of the writer, the present case is clearly distinguishable from those in which the incidental mention of a prior conviction in the same case has been held harmless.
The conduct of the juror, whatever may have been his motive, was calculated to injure the accused and apparently was so intended. At least, the contrary cannot be presumed. McDougal v. State, 81 Tex.Crim. Rep..
The sanction by this court of the present conviction would tend against the purity and impartiality of the jury, a matter of such concern that its preservation has been the thought of the makers of the Federal and State Constitutions, and the vigilant care of both the Legislature and the courts.
The new trial should have been granted in the trial court.
The motion for rehearing in this court should be granted, the affirmance set aside, and the cause reversed and remanded.
CONCURRING OPINION.