Appellant in his motion vigorously attacks the fairness of a certain juror and offers affidavits of some of the jurors relative to proceedings had during the deliberations of the jury. Upon being placed upon the stand, the major portion of said jurors were not of much benefit to appellant's theory relative to their misconduct. Much of the matters set forth as misconduct impress us as a fair consideration of the testimony presented to the jury; and some of the allegations in the motion for a new trial seem to be an effort to allow the jury to impeach their own verdict. Such can not be done. See 29 Texas Digest, p. 270, Sec. 143.
The testimony relative to the unfairness of the juror and his alleged enmity to the race to which appellant belonged is brought before us in a question and answer form, covering eighty-five pages, and we find no statement in the trial court's approval thereof that it was necessary that same be submitted in such form.
However, suffice it to say, the matter relative to the prejudice of the juror was one that appealed largely to the discretion of the trial court. He saw the witnesses; he heard their testimony, and, under the conflicting and sometimes confusing testimony, surely he exercised his best judgment and was within his discretion when he overruled this motion for a new trial and refused to hold the juror an unfair or a prejudiced one.
We are of the opinion that the trial judge did not abuse the discretion confided in him by the law in overruling the motion for a new trial. See 4 Tex. Jur., p. 566, Sec. 396, from which we quote:
"A motion for new trial is addressed to the sound discretion of the trial court whose action thereon will not be disturbed on appeal save in those cases wherein the discretion has been abused. This is true whether the motion for new trial is made *Page 251 for misconduct of the jury, for prejudice on the part of jurors, for disqualification of a juror, for refusal of a continuance or fer newly discovered evidence."
The motion for a rehearing will be overruled.