Whitfield v. State

On more mature consideration of the record in this case we feel impelled to say that we were in error in stating that three of the jurors testified for the appellant to the effect that the statement was made in the jury room that the defendant was one of the worst bootleggers around Itasca. The testimony is in a rather confused state in the bill of exceptions and this perhaps accounts for our oversight in the matter. We think it clear from a re-examination of the same that only one juror made this statement and we are convinced now that the evidence of the other eleven is entirely sufficient to show that neither of them made any such statement. Under this condition of the record it became a question of fact to be determined by the trial court and we think the court did not abuse his discretion in holding in effect that such statement was not made. Gutierrez v. State, 272 S.W. 780, and authorities there cited.

Neither do we think that the evidence is sufficient to show injury by reason of the statement alleged to have been made by some of the jurors to the effect that appellant was bad about fighting. This was a mere casual reference and as the verdict was for the lowest penalty under facts entirely sufficient to support the verdict, this matter does not present reversible error. Cox v. State, 12 S.W. 493.

Believing that we were in error in our original opinion, the state's motion for rehearing is granted, the judgment of reversal is set aside and the judgment of the trial court is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.