The opinion
CONCURRING OPINION.
HAWKINS, Judge.
I concur in the views expressed by Presiding Judge Morrow in the conclusion reached that a rehearing should be granted, and the cause be reversed and remanded for a new trial. A quotation from Smith v. State, 52 Texas Crim. Rep. 344 , appear in both the affirming opinion and in this one. A distinction between the Smith case and the present one' should be noted. In the former the juror’s reference was to a prior conviction of Smith for the same offense for which he was again upon trial. Upon the first trial he was given a life term in the penitentiary. Upon the subsequent trial ten members of the jury were for a life sentence and two were for the death penalty. Reference to the result of the former trial brought the two jurors who had been holding out for the death penalty over to the ten and punishment of a life term in the penitentiary was agreed upon. Judge Ramsey used this significant language:
11 Here it is manifest, as we believe, that the only effect of the discussion of the former verdict inured to the benefit of appellant. It caused two jurors who were in favor of death to go over to the ten and give appellant a life sentence. Indeed, the only discussion had was addressed by a juror in favor of a life sentence to one of the
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two jurors standing out standing out for a death penalty, and whatever effect it may have had or would have was to mitigate the sentence and inure to the benefit of appellant.”
In the present case there was a statement by a juror to the effect that appellant had been formerly convicted in the Federal Court. It had no reference to the charge they were then investigating, but asserted that accused had been convicted of some crime in another jurisdiction. Upon hearing the motion for new trial the evidence showed this statement to be untrue and that appellant had never been convicted in the Federal Court.
For this reason I concur in the opinion reversing and remanding.