¶1The exception to the jurisdiction of the court is not a sound one. The indictment charged a felony which included a misdemeanor. A felony being charged, the district court had jurisdiction to hear and determine the case, not only as to the felony, but as to any lower grade of offense which the proof might develop. It is expressly so provided by the statute, and we cannot perceive that such provision is in' conflict with the Constitution, as contended by defendant’s counsel. (Code Crim. Proc., Art. 69.) Such has been the holding of this court in several cases in which this question has been presented. (Harberger v. The State, 4 Texas Ct. App., 26; Ingle v. The State, Id. 91; Montgomery v. The State, Id. 140.)
¶2That two of the jurors conversed with a person not a juror about the case, pending the deliberation of the jury upon the case, does not necessarily entitle the defendant to a new trial even in a felony case. It must be made further to appear that by reason of such improper conduct, injustice was probably done the accused. In March v. The State, 44 Texas, 64, it is said that the conversation of a juror with a parson not a juror, must be such as was calculated to impress the case under consideration upon the mind of the juror in a different aspect from the one made upon the mind from hearing the evidence, or of such a *459nature as was calculated to result in harm to the party on trial, or the conversation will not be a ground for new trial.
¶3In the case before us the record fails to disclose what the conversation was. It may have been such as was calculated to and did operate beneficially, instead of prejudicially to the defendant. As the matter is presented to us, we can not say that the court abused its discretion in overruling the motion for a new trial.
¶4There is no error in the conviction, and it is affirmed.
¶5Affirmed.