The opinion
ON APPELLANT’S MOTION FOR REHEARING
BELCHER, Commissioner.
It is again insisted that the misconduct of the jury warrants a reversal because of the jury’s discussion during its deliberations before reaching a verdict that the appellant would probably be released in about fifteen years if given a life sentence.
A re-examination of the testimony on the hearing of the motion for new trial reveals that the appellant called two jurors. The first juror testified that in discussing the punishment before arriving at a verdict, one or more of the jurors said the appellant could probably get out in about fifteen years if assessed a life sentence, but he could not recall the name of the juror or jurors who made the statement. No inquiry was made of the other juror pertaining to the time the appellant would serve before his release.
The state called the other ten jurors and none of them were asked or testified pertaining to any discussion during their deliberations concerning the punishment to be assessed or the time served on a life sentence before release. The refusal of a new trial because of jury misconduct was not error.
For the first time on motion for rehearing, the appellant contends that the trial court committed fundamental error in failing to withdraw his plea of guilty and enter a plea of not guilty for him, before submitting the charge to the jury, since evidence *756 was introduced bearing upon his sanity at the time of the offense and the court charged the jury on the defense of insanity. It is contended that such action deprived the appellant of his defense of insanity and due process.
In submitting the case to the jury, the court charged in the first paragraph that the appellant had pleaded guilty to the offense of murder; however, there was no instruction to find appellant guilty upon such plea.
The court further charged upon the law applicable to both murder with and without malice, and then submitted the issues of each to the jury, authorizing a conviction only after they had found beyond a reasonable doubt that he was guilty, and applied the law of reasonable doubt thereto.
Insofar as our original opinion may be construed as holding that there was evidence introduced before the jury which would support a finding that appellant was insane, at the time of the killing, or at the time of the trial, such opinion is now amended and corrected.
While there was testimony as to appellant’s mental condition, all of the evidence was that he was legally sane.
The issue of appellant’s sanity was raised, not by his testimony, but by his plea of guilty.
The judgment recites “it plainly appeared to the Court that said defendant was sane”; that the plea of guilty was received and entered of record as the plea of the defendant and that it was read to the jury.
There being no evidence that the defendant was insane, there was no occasion for the court to withdraw his plea of guilty, and an instruction to the jury to find him guilty would have been proper.
The trial court chose, however, to submit the question of appellant’s sanity as well as the question of malice and temporary insanity produced by the use of intoxicating liquor or narcotics, or a combination thereof, which related only to the punishment to be assessed by the jury.
The charge was more favorable' to appellant than was required.
There were no objections to the court’s charge and no requested charges.
The appellant relies upon Thompson v. State, 127 Tex.Cr.R. 494 , 77 S.W.2d 538 , for a reversal.
In that case the court instructed the jury that the defendant was sane and to find him guilty as charged in the indictment, but in a requested charge instructed the jury to find him not guilty if he was insane. It is evident that there was a direct conflict between the main charge and the requested charge.
The failure of the court to withdraw the plea of guilty and enter a plea of not guilty, under the facts and the charge as given does not present reversible error. Art. 666 Vernon’s Ann.C.C.P.
The motion is overruled.
Opinion approved by the Court.