¶1 ON MOTION FOR REHEARING.
¶2 In the light of appellant’s motion, we have again examined the evidence introduced upon the application for a change of venue. In the opinion of the writer, a showing was made that there did exist in the town of Mt. Vernon and the immediate vicinity thereof such a prejudice against appellant that he could not likely obtain jurors from that neighborhood who would be impartial. It may be this condition was not shown to exist generally over the *361 county to such an extent as would' authorize the conclusion that the court abused his discretion in overruling such application. But the question is close and if such motion is renewed upon another trial the evidence thereon should be carefully weighed.
¶3 Closely connected with the question raised by the motion to change the venue is another matter called to our attention in the motion for rehearing which in some way was overlooked in disposing of the case originally. As one ground for a new trial appellant averred that he did not have a fair and impartial jury to try him, in that one Crawley, who served as one of the jurors, was prejudiced against him, and had so expressed himself prior to qualifying as a juror. It is shown that neither appellant nor his counsel knew of such feeling on the juror’s part until the trial was practically over, and that the juror’s testimony on his voir dire examination gave no hint of his unfavorable attitude towards appellant. Upon hearing the motion for new trial the juror, Crawley, admitted that he had sworn upon his voir dire examination that he had’ no prejudice in the case, that he had forced no opinion against appellant on account of this or any other case; that he was not biased in favor of the State, and could give appellant as fair a trial as if he was a stranger, and had no feeling against him at all. Weatlierford testified that on one occasion when a number of men were at the cemetery digging a grave a discussion came up about appellant in connection with the result of a former case in which he was tried for transporting liquor, and that Crawley said the jury ought to have given five years instead of suspending his sentence, and that if he (Crawley) had’ been on the jury he would have sent him to the “pen”, and said further that appellant ought to be in the “pen”. The witness further testified that on another occasion when appellant came to a certain gin a question arose as to his business there, and some one said, “He (appellant) is a pretty "looking fellow to send' around to attend to business, and Mr. Crawley said, yes, he is a pretty bad boy, he ought to be in the penitentiary, or something like that. ’ ’ Kennedy testified to the same statements made by Crawley at the cemetery, saying that Crawley remarked it looked like from the way appellant was doing the penitentiary was the place for him. Roper testified that on one occasion witness drove his car into a branch near Crawley’s house and sought the latter’s aid in getting’ the car out, that on this occasion Mr. Crawley said, “If he could smell whiskey he would swear we were drunk by getting into a place like that, and said something about if we were like that whiskey-peddling Thurman Davis, he wouldn’t help us out. … He said Thurman Davis was a whiskey peddling s— of a b — , or something like that, and ought to be in the pen, … and said if he had a chance he would send Thurman Davis to the pen for life or break his neck.” The juror Crawley testified for the State. On direct examination he said):
*362 “I did not say to Grover Roper that Thurman Davis was a whiskey-peddling s — • of a b — ; I don’t remember having any conversation with Roper about Thurman Davis. I never said if I was on his jury and had a chance I would break his neck or send him to the pen. ’ ’
¶4 In regard to the statements claimed to have been made by him at the cemetery, the witness did not deny making, them, but only said he remembered no such conversation. The State did not interrogate him about his purported statements at the gin. On cross-examination the juror testified that he remembered the incident of Roper having a car stuck in the mud and said:
“I don’t remember Thurman Davis’ name being called while I was helping them out of the creek. I wont say it was or was not called by me. I did not say in that conversation that Thurman Davis was a whiskey-peddling, s— of a b — , because I don’t call people by such names as that. I don’t remember saying anything about Thurman Davis going to the pen. I did not say that if I was on the jury and had a chance I would send him to the pen. I don’t know whether I said he ought to be in the pen or not. ’ ’
¶5 The juror would not say that he did or did not have the conversations about appellant at the cemetery and the gin, but would only say he did not remember them, and did not think he used some of the statements there attributed to him. Here we have a juror who on three separate occasions is claimed to have used towards appellant language which reflects a bias or prejudice against him. The juror denies the use on one occasion of an opprobrious epithet towards him, and denies saying if he had an opportunity he would send appellant to the penitentiary, but would not deny that on this occasion he expressed the opinion that appellant should be in the penitentiary. Regarding the 'remarks at the cemetery positively averred by two witnesses to have been made by the juror, and those at the gin positively attributed to him by one witness, he enters! only a half-hearted denial by claiming not to remember such conversations. "We think this case, by reason of the facts recited, does not fall within the rule that where issue is joined upon such a question and the evidence thereon is in conflict the discretion of the trial judge as reflected in his ruling will not ordinarily be disturbed, but are of opinion the evidence upon the matter shows that the fairness of the jury trying appellant has-been impeached by showing* the presence thereon of a juror whose state of mind towards appellant was such as to deprive him of that character of trial by a fair and impartial jury contemplated by the law. Without reviewing them, we refer to the following authorities sustaining the views expressed: Haggart v. State, — Tex. Crim. Rep. —, 178 S. W., 328; Harris v. State, — Tex. Crim. Rep. — 161 S. W. 125; Long v. State, 10 Tex. App. R. 199; Hughes v. State, — Tex., *363 Crim. Rep., — 60 S. W., 562; Adams v. State, 92 Tex. Crim. Rep. 264, 243, S. W., 474.
¶6 The motion for rehearing is granted, the judgment of affirmance set aside, and the judgment is now reversed and the cause remanded. ¡
¶7 Reversed and Remanded.