The opinion
ON state’s motion for rehearing
MORRISON, Judge.
This is a companion case to J. W. (Dub) Adams, No. 33,846, this day decided.
We have re-examined the evidence in the light of the authorities set forth in the State’s brief and have concluded that the acts of appellant and his companions in intercepting the women, running around and cutting them off when they attempted to flee, plus the act of exhibiting a pistol so that it would be visible to one of the women, was sufficient evidence of threatened violence to satisfy the rule set forth in Van Arsdale v. State, supra.
Bryant v. State, 129 Texas Cr. Rep. 438 , 87 S.W. 2d 722 , is especially persuasive.
: We remain convinced, however, that the case must be reversed because of jury misconduct. It was shown, and not disputed at the hearing on the motion for new trial, that when the question .of the penalty came up for discussion the foreman suggested-that they start "with a term of 20 years and, after dis *139 cussing the matter from there, one member of the jury said that, if appellant had not been such a bad character and had not been in trouble with the law before, the jury “could afford” to give him a lighter sentence but that, since such were the “facts”, a heavy sentence was called for. Another juror stated, “Either the defendant Curtis Lee Adams, or his brother who is under indictment for the same offense charged against Curtis Lee Adams, has already served some time in the penitentiary for another offense.” Still another juror stated that appellant had not been to the penitentiary but had been in trouble with the local laws a lot of times.
Since this testimony as to what occurred in the jury room was not controverted, no issue of fact was raised for the trial court’s determination and it became the duty of the trial court to grant appellant’s motion for new trial. Rogers v. State, 158 Texas Cr. Rep. 8 , 252 S.W. 2d 465 .
For the reasons set forth, the State’s motion for rehearing is overruled.
state’s motion for rehearing