Tex. Cr. R. 561, 110 S. W. 911; Howard v. [10, 11] The truth of the averments in the motion for new trial was a question of fact within the purview of the trial judge. We understand the rule controlling such matters to be that, when the evidence is conflicting or the credibility of the witnesses impeached, the decision of the trial judge must prevail. In other words, it is within the judicial discretion to overrule a motion for new trial based on the claim of misconduct of the jury, and the action of the trial court will not be overturned on appeal unless it be shown to on the hearing of the motion, it must be assumed that he found that Smith did not make In his motion for new trial, the appellant the statement imputed to him touching the charged that the jury, in its retirement, had appellant's knowledge of right and wrong, received new material, and prejudicial evi- or to his being "as mean as the devil"; that dence against him and charged various acts of Owens did not state, that, if the jury failed alleged misconduct. Immediately after retire- to give the death penalty, a mob would get ment the twelve jurymen expressed the con- the appellant, but that his reference to the clusion that the appellant was guilty of mur-mob consisted of his statement that, if the der. Ten of them declared themselves in fa- courts would uphold the law, the action of vor of the death penalty. The two jurors Ku Klux and other mobs would be without who did not at that time do so were Hutche- excuse; that no remarks touching the exson and Young. pense of trial were made; that the remarks On the trial there was an issue of insan-attributed to Owens to the effect that the ity. On the hearing of the motion there was first tried of the three offenders should evidence that the juror Smith said that he be given the death penalty, otherwise the knew the appellant; that he knew right from others would not be so treated, was not wrong, and that he was "as mean as the dev-made by him in the terms testified to by the il." Smith, on the hearing of the motion, juror Young, for the reason that Owens gave testified and denied making this statement. a qualified denial of it, and the credibility There was testimony that the foreman, of Young was challenged by affidavits of conOwens, in the course of the argument in the tradictory statements. jury room, stated that, if the jury failed to give the death penalty, a mob would hang the appellant; also that Owens said that the offense was committed by three of them, and that, unless this, the first one, was given the death penalty, none of them would receive it; that Owens also said that, if a mistake was made, the Governor would correct it; and he further stated that his own son was defective, but that he knew right from wrong; that he (Owens) understood this kind of people. It was also argued that the jury should agree on a verdict in order to avoid the ex-be clearly wrong. Douglas v. State, 58 Tex. pense of another trial. Owens, in substance, gave the following testimony: That he was foreman of the jury. When asked if he had made any reference to a mob, said that it would be difficult for him to relate all that took place while the jury was discussing the case; that it was possible that something was said to the effect that "if the courts would uphold the law, there would not be any excuse for Ku Klux or any other mobs"; that he thought the word "mob" was used in that connection; that he thought he remembered remarking that, if the jury made an error in their verdict, it would be or could be corrected by the Governor or the Court of Criminal Appeals; that no reference was made to his son. He said that he did not think that he used any language to the effect that, if the appellant, being the first one tried, was not hung, that they would not hang any of the three defendants. He said that he could not say positively, but that he did not recollect the use of any such words, either by himself or any one else. He said further that there was no remark, to his knowledge, concerning the cost of the trial; that he recalled hearing nothing of the kind, and made no such statement himself. Giving effect to the decision of the trial judge on the controverted issues developed Cr. R. 127, 124 S. W. 933, 137 Am. St. Rep. 930; Vernon's Tex. Crim. Stat. vol. 2, p. 792; Watson v. State, 82 Tex. Cr. R. 305, 199 S. W. 1113; Alexander v. State, 84 Tex. Cr. R. 185, 206 S. W. 362; Reese v. State, 87 Tex. Cr. R. 245, 220 S. W. 1096; Barnard v. State, 87 Tex. Cr. R. 365, 221 S. W. 293. Eliminatis conflicting, the remarks made during the ing the averments upon which the evidence deliberations of the jury we conceive to have been by way of argument. They cannot be justly classified as new evidence within the if related to that article at all, they are to scope of subdivision 7 of article 837, but, be considered in connection with subdivision 8, which authorizes a new trial for misconduct of the jury which in the opinion of the court prevented a fair and impartial trial. That the conduct of the jury proved did not, in the opinion of the judge trying the case, militate against a fair and impartial trial is made manifest by his act in overruling the motion. The inquiry arises, Did he abuse the discretion which the law vested in him? Was he "clearly wrong"? From 2 Thompson on Trials, § 2618, we take the following: have almost universally agreed upon the rule "Upon the grounds of public policy, courts that no affidavit, deposition, or other sworn statement of a juror will be received to impeach the verdict, to explain it, or to show on Tex.) TODD v. STATE what grounds it was rendered, or to show a mistake in it, or that they misunderstand the charge of the court, or that they otherwise mistook the law, or the result of their finding. But in these and other like cases the courts have steadily refused to listen to such affidavits. Neither is it admissible to show by the oath of a juror that he did not agree to the verdict as rendered, or that he consented to the return of the verdict, without concurring in it, in order to secure his discharge, or because his health absolutely required him to be released from confinement, or that the verdict which was rendered was not, in fact, the verdict of the particular jurors. It will not be admissible thus to show that the verdict was by mistake returned as the verdict of the whole jury, when some of them were, in fact, in favor of finding it for the other party." a state of facts materially divergent from those passed upon in the Lax Case, supra, but, on the contrary, the declaration imputed to the foreman of the jury under the findings of the trial court does not suggest that the verdict was coerced by the fear of a mob, nor that it was responsive to public opinion. r'airly interpreted, we think the record reveals that the jury in the instant case, after hearing the evidence and receiving the charge of the court, concluded immediately upon their retirement that the appellant was guilty of murder. Eleven of them favored the death penalty. The juror Young demurred. The matter of penalty was a legitimate subject of discussion. The question was: What is the duty of the jury in its capacity as a part of the court of the country? It was the opinion of the foreman that obedience to duty required the death penalty. In enforcing this view he used the argument that, if the courts performed their duty, the excuse upon which the mobs attempted to justify their acts could not exist. This put no new fact before the jury; it transgressed no statute. In support of appellant's contention that the reference to the mob during the deliberations of the jury was such misconduct as demands a reversal, we are referred to the case of Lax v. State, 46 Tex. Cr. R. 628, 79 S. W. 578. In that case, the averment in the motion for new trial was that a juror named McKinney had, after the verdict, declared that the foreman of the jury, during its de-new trial (article 837, subds. 7 and 8, Code liberations, stated: "Gentlemen, we must give this man the death penalty, or he will be hanged before morning." The appellant obtained process for the juror, but the officer refused to execute it, though he had ample time to do so. That case was reversed because the court refused or failed to have the juror McKinney brought into court so that the matter might be investigated. There can be no dissent from the conclusion stated that a verdict coerced by the fear of a mob is not untrammeled and unbiased. If we properly comprehend the Lax Case, there was before the court an averment which indicated that the foreman of the jury had told the other members of the jury in direct terms that the death penalty must be assessed or the mob would hang the accused before morning. The record in that case does not reveal the reasons which impelled the foreman to make this statement; that is, whether the trial was had under the influence of a mob. The appellant, Lax, through his attorneys, made all efforts that diligence could demand to have the juror to whom this statement was imputed brought before the court to the end that the matter might be investigated. Notwithstanding his efforts to that end, the court declined to force the attendance of the juror. This court reversed the judgment because the court did not facilitate an investigation of the truth of the averment. In the case before us the truth of the averment was investigated, and it was shown that there was no fear of a mob, and no declaration of the foreman to that effect, but that he used the argument that "if the courts performed their duty there could be no excuse for any kind of a mob." It occurs to us that the evidence on the hearing of the instant case reveals By virtue of our statute on motions for Crim. Proc.) and its interpretation by decisions of this court, the scope of the rule of public policy announced in the text is very much restricted in its application in this state. This is illustrated by many cases. See Mizell v. State, 81 Tex. Cr. R. 241, 197 S. W. 300; Weaver v. State, 85 Tex. Cr. R. 111, 210 S. W. 698; McDougal v. State, 81 Tex. Cr. R. 183, 194 S. W. 944, L. R. A. 1917E, 930; Gilbert v. State, 85 Tex. Cr. R. 597, 215 S. W. 106. Notwithstanding its modification, the rule has not been abrogated entirely, and, when it does not run counter to the statute of this state, as interpreted by the decisions of its courts, it still operates. 12 Cyc. of Law & Proc. p. 678, subd. (f), notes 17 and 18; Watson v. State, 82 Tex. Cr. R. 305, 199 S. W. 1113; Turner v. State, 61 Tex. Cr. R. 97, 133 S. W. 1052; Bacon v. State, 61 Tex. Cr. R. 206, 134 S. W. 690; Montgomery v. State, 13 Tex. App. 74; Wright v. State, 84 Tex. Cr. R. 352, 207 S. W. 99; Bridges v. State, 88 Tex. Cr. R. 61, 224 S. W. 1097; Gonzales v. State, 88 Tex. Cr. R. 248, 226 S. W. 405; Weatherford v. State, 31 Tex. Cr. R. 536, 21 S. W. 251, 37 Am. St. Rep. 828; Pilot v. State, 38 Tex. Cr. R. 515, 43 S. W. 112, 1024; 16 Corpus Juris, § 2682. In Bearden v. State, 47 Tex. Cr. R. 271, 83 S. W. 808, a juror testified that the jury stood seven for conviction and five for acquittal; that he proposed that, if the jury would agree to a manslaughter verdict of two years in the penitentiary, and also to sign a petition for pardon, he would agree to join them; that he did join them upon this consideration. Another juror made affidavit to the truth of these averments. The court expressed itself thus: "Under the laws of this state, when the jury, of this statement was controverted by the is impaneled, they are sworn to try the case affidavit of Young. according to the law and the evidence. Now, in this case we have two jurors, who were evidently sworn, making affidavit that they did not try the case according to the law and the evidence adduced. The bare statement of this shows the outrageous conduct of the jury. Here we have one oath against another oath; one, in which he swears he will try the case according to the law and the evidence, and another in which he publicly confesses by affidavit that he did not do so. If this were a question of fact upon which we could pass, we would be at a loss to know which oath to accept. But, under the decisions of this court, and all courts, such reprehensible conduct is not permitted to be used to set aside and destroy the solemn verdict of the jury. In Montgomery's Case, 13 Tex. App. 75, one juror made affidavit that he was intimidated in consenting to the verdict by a charge being brought against him by another juror; that he was put upon the jury for the purpose of hanging the appellant. Two other affidavits were made by jurors to the effect that they agreed to the verdict upon the understanding that the other members of the jury would join them in the petition for pardon. Presiding Judge White, of this court, disposed of the matter thus: "As to the first affidavit, we do not believe a juror should be allowed to impeach his verdict in such manner, and to sanction such practice of impeachment would be both improper and dangerous. Mercer v. State, 17 Ga. 175. As to the second affidavit, the case of the State v. Walman is directly in point, and therein it was held: "That evidence will not be admitted to show that one of the jurors in a murder case only agreed to the verdict on condition that a petition signed by every member of the jury should be addressed to the Governor, asking that the penalty be commuted from death to imprisonment for life.' 31 La. Ann. 146. We are of opinion that the court did not err in overruling the motion for new trial, based upon the supposed misconduct of the jury." [12] The juror Owens, when examined upon his voir dire, admitted his acquaintance with the father of appellant, and that he knew the appellant by reputation; that he was aware that appellant had made a confession; that he thought that no opinion formed by him touching the guilt or innocence of the accused would influence his verdict. With this information he was selected, without objection, by both the state and the appellant. After he was sworn as a juror, state's counsel learned that Owens had written a letter of sympathy to the father and mother of the appellant. On his information he informed the court and endeavored to get the consent of appellant's counsel to the dismissal of Owens from the jury. Counsel for appellant declined to do so, stating that any one knowing the father and mother of appellant would entertain feelings of sympathy towards them. The averment charging the disqualification of the juror Owens, being controverted, is governed by the same presumption indulged in favor of the correctness of the ruling of the trial court as obtains with reference to other phases of misconduct of the jury involving issues of fact. We are constrained to the conclusion that the conduct of the jurors in the instant case, which was not controverted, is not of a nature to warrant a reversal of the judgment. The rule of public policy to which we have adverted is sufficiently vital in this state to preclude a reversal of a judgment of conviction on account of arguments used by one juror to another which, as in the present instance, are not in the nature of new evidence, and do not relate to matters which, by statute, the jury is forbidden to discuss, and which do not show prejudice of the juror against the accused or his case. There was introduced corroborative evidence of the appellant's confession in prac-tically all of its details. He relied upon the defense of insanity, and introduced upon that It may be conceded that, if some of the issue a number of witnesses, many of whom language imputed to the juror Owens was, had known him during his entire lifetime, in fact, used by him, his status as an unprej- and they gave testimony supporting this deudiced juror would become a serious ques-fense. At least, they related instances in his tion. Weaver v. State, 85 Tex. Cr. R. 111, life, most of which were of trivial nature, 210 S. W. 698; Lax v. State, 46 Tex. Cr. R. upon them they based the opinion that his 628, 79 S. W. 578. As observed before, the mind was weak; that he was easily influencutterance of the objectionable language was ed; and some of them said that his mind controverted by the testimony of Owens. was unsound to the degree that he was not Young, whose testimony was in the main able to distinguish right from the wrong. relied upon to discredit the fairness of Owens Among the witnesses were two physicians. as a juror, was attacked by affidavits found One of them had known the appellant, who attached to the motion for new trial. In was between 18 and 19 years of age, during these it is claimed, among other things, that his whole life, though the witness had had Young stated immediately after the trial that | but little opportunity to see appellant during it was he who delayed the rendition of the verdict; that in doing so he was not impelled by any doubt as to its correctness; that but for him the other jurors would have rendered the verdict with undue haste. The making the last three years. He said that the appellant was like a child. The other physician, who was also well acquainted with him, said that he had never regarded the appellant as possessing a normal mind; that he was of (248 S.W.) low mentality, easily influenced, and had where the case was tried; that his farm adbut litle will power; that he was not an idiot, joined that of the father of the appellant; but was childlike; that he would not be able that he had known the appellant for some to give an opinion as to whether the appel- two or three years, had seen him frequently, lant's mind was such as to enable him to had ridden to town with him, had gone huntknow the consequences of his acts for the ing and fishing with him, and talked to him reason that he (the witness) was in doubt on various topics, and had observed his apabout it. The father and mother of the appearance; that his mind was like that of a pellant, as well as his brother and uncle, tes- child, and, in the opinion of the witness, he tified upon the subject under discussion. was not capable of distinguishing between appellant for the past three years; had seen him frequently during that time, and had talked to him; had lived near neighbor to him; that he noticed that he was peculiar; that he was melancholy, and seemed to take no interest in things; that his conversations were not coherent. In the opinion of the witness, the appellant's mind was unsound. The state also introduced a number of wit-right and wrong. nesses who were well acquainted with the Johnson, another witness, had resided in appellant, and who expressed the opinion that | Weatherford all of his life; had known the his mind was sound, and that he was able to distinguish right from wrong with reference to particular acts. Some of these witnesses had known him intimately; others for a shorter period of time. One of them was a teacher who had taught appellant in school during the years 1914 and 1915. She said that she had observed his mental condition as a pupil; that she noticed nothing indicating that he was other than normal; that she did not remember the grades that he made at school, but recalled nothing to distinguish him from other children; that in her opinion, based upon her knowledge of him, he was able to distinguish right from wrong. [13] One ground for the motion for new trial was newly discovered evidence. The homicide took place on August 31st. Appellant's confession bears date September 8th. He was indicted October 8th, and the trial began November 7th. The new evidence is embraced in several affidavits. That of Pera Todd, wife of the appellant, was to the effect that the marriage took place in December, 1920; that she and her husband resided part of the time in Fort Worth and part of the time at the home of the appellant's father in Parker county; at the time of the homicide they resided in Fort Worth, and the appellant was at his home both before and after the homicide. Relating some demeanor and actions of the appellant, his wife would have given testimony that he was insane; that she did not reveal this to either the appellant or his attorneys but refrained from doing so because she did not want to be mixed up in the trial. It was shown by the court attorney that he had talked to Mrs. Todd (appellant's wife) before the trial took place; that she told him that her husband was in his right mind so far as she knew; that she had consulted the district attorney in Tarrant county and told him that she intended to get a divorce from her husband. McCall, the county attorney of Parker county, told her that if she obtained a divorce she could testify in behalf of the state; otherwise she could not. She said that she did not want to testify either for or against her husband, but that she was going away. She did go to another county in the state. The affidavit of Edwards was to the effect that he lived two miles from Weatherford, Heath, another witness, had worked at the home of appellant's father in July, 1921, and had noticed that the appellant was peculiar and different from other persons, and acted like a child. In the opinion of the witness, the mind of the appellant was not sound. It is to be observed that one of the new witnesses was the wife of the appellant; the others were his neighbors. His father was a resident of the county; he was present at the trial, and interested in behalf of the appellant. Appellant's attorneys were also residents of the county. The appellant and his wife were living together at the time of the homicide. He was with her on the day that the homicide was committed; both before and after. The record reveals that no conversation was had with her, nor was any inquiry made touching her testimony. She could not have been used as a witness against him; and, in the absence of more efforts having been made to obtain her testimony in his behalf, we think the rule of diligence has not been met. The same is true with reference to the neighbors Edwards, Johnson, and Heath. Edwards lived on the adjoining farm to appellant's father. Johnson was a close neighbor to the appellant, and Heath was likewise a neighbor, and had worked for appellant's father while appellant was present. All of them were citizens, apparently known to both appellant and his counsel, as well as the relatives of the accused. Granting that, in a case where the defense is insanity, the rule of diligence is somewhat lax (Walker v. State, 86 Tex. Cr. R. 441, 216 S. W. 1085), we think, in the instant case, the court did no violence to the law in holding the diligence insufficient to meet the requirements of the statute relating to newly discovered evidence. Article 837, subd. 6, Code Cr. Proc.; Vernon's Tex. Crim. Stat. vol. 2, pp. 777 and 778; Toussaint v. State (Tex. Cr. App.) 244 S. W. 514. Moreover, the alleged newly discovered evidence was not such as to warrant a dis turbance of the judgment. There was no The youth of the appellant is appealing. It outstanding fact in any of the new testimony was doubtless urged and considered by the upon which the opinion of insanity was jury. They, at a trial conducted by an able predicated. All of the newly discovered evi- and impartial judge, have rendered a verdict dence related to conduct of the appellant assessing the extreme penalty. We find nothwhich was in no material sense dissimilar ing in the rulings of the court, the conduct from that which was described by the numer-of the jury, or the evidence which would ous witnesses who testified in his behalf on warrant this court in overturning the verdict that issue upon the trial. and reversing the judgment of the trial court approving it. The judgment is affirmed. On Motion for Rehearing. The order of the court overruling the motion implies the decision that he did not regard the testimony such as would probably produce a different result. In the light of the facts, this court is not in a position to say that the record warrants this court in holding LATTIMORE, J. [15] In a logical and that the trial court abused its discretion. forcible motion for rehearing appellant in[14] From the confession of the appellant,sists that we erred in our original opinion. corroborated in many of its details, it was The only grounds of the motion that we deem shown that appellant and Dawson, some it necessary to discuss are those calling in three days before the homicide took place, formed a plan to get into an automobile with some person and rob him; that a suitable weapon-an iron rod or pipe-was provided; that on one or two occasions they did get into a car for the purpose of carrying out this intent, but failed to do so; that they were subsequently joined by a third party, who was also provided with an iron rod suitable to be used as a bludgeon, and that while riding in the car of the deceased they assaulted, wounded, and took him out of the car and placed him in a dry creek in a pasture; that they previously selected the place and agreed upon a plan which was carried into effect; that the blood from the deceased was spilled on the car, and upon the clothing of the deceased; that unsuccessful efforts were made to remove the blood stains; that the car belonging to the deceased was taken to Fort Worth, and from thence to a point some distance therefrom, where it was left in a ditch; that in taking the car to this place they hired another automobile, which they returned, depositing part of the money which they obtained from the deceased to guarantee the return of the car; that part of the money was used in buying clothes for Dawson, one of appellant's companions; that the bloody apparel of the deceased was hidden, and Dawson's clothes worn at the time of the homicide were thrown away; that the money was divided among them; that appellant, instead of returning to his home or to that of his father, went from Fort Worth to Hillsboro, and from thence to Waco, Belton, Temple, and other places. question our opinion wherein is upheld the action of the trial court in refusing a motion for new trial based on misconduct of the jury. The matter of misconduct being controverted, we are not inclined to question the correctness of our holding to the effect that, the evidence being before the court below at the time the motion for new trial was presented, and having been heard by him and decided adversely to appellant, we are bound by such action unless it plainly appears to us that there was no evidence to justify the conclusion reached by the learned trial judge. The complaint was based principally upon two statements alleged to have been made by members of the trial jury while in their retirement. One was that a juryman said, in substance, if the jury did not assess the death penalty, a mob would get the defendant. The other set up that it was stated in said jury room, in substance, that there were three persons involved in this killing, and that this was the first one to be tried, and that, unless the death penalty was assessed in this case, it would not be assessed in the others when tried. We have been unable to bring ourselves to believe either of these matters to be statement of facts purporting to be known to the declarants, and of the existence of which the other members of the jury were not aware, and whose statements so made would be in the nature of other evidence presented to the jury while deliberating. Nor are we willing to agree that such statements, even if made, evidence such misconduct on the part of the trial jury as would require a reversal at our hands. From the case of Jack v. State, 20 Tex. App. 660, we take the following quotation: In solving the issues the jury had before them the evidence of the part that appellant took in planning, executing, and concealing "But we are not prepared to say that the the crime, and his flight. The deceased re- statement of the juror, complained of, consided in another county. The appellant was stituted misconduct such as the law contemtried in that in which he was reared and in plates as a ground for new trial, even if it did have the effect to increase the defendant's punwhich his relatives resided. He was repreishment. The statement had no reference sented by the most skillful counsel, and the whatever to the question of defendant's guilt, record at every point bears evidence of the and could in no way have affected the deterfidelity with which they performed their duty.mination of that issue. It was a statement |