Clarich v. State

ON MOTION FOR REHEARING.

HAWKINS, Judge.

Appellant takes the position that the evidence heard on the motion for new trial makes no issue on the question of the misconduct of the jury. In view of his contention we have again carefully gone over all of the testimony presented on the hearing of the motion for new trial. We are unable to agree that no issue of fact was raised by such evidence. The trial court decided it in favor of the State. The rule controlling is stated very clearly in Day v. State, 120 Texas Cr. R. 17, 48 S. W. (2d) 266, as follows: “In cases where, as in the present instance,…