In this ease the appellant, was indicted for violating the local option law, and upon a trial he was convicted.
The state’s witness, Louis Van Der Leer testified as to the identity of the person who sold him the whisky as follows, on direct examination: “The man from whom I got the whisky looked like the defendant. I know the defendant now, but did hot know him at the time.” On cross-examination he "said: “I could not say positively that he is the man from whom I got the whisky, but he-looks like the man. I do not say for certain he is the man. He just looks like him. When I was carried before the officers, I told them I did not know the man from, whom I got the whisky. They put me in. jail for two days, when I again told them I did not know the man. They kept me in jail for eight days, when I told them this-looked like the man. I was willing to tell them anything to get out.of jail. I do not know whether this is the man or not, but he looks like the man.” On identity of the man, this is all the testimony of the state. The defendant testified he was not at the Red Cross Drug Store on the morning the witness testified he purchased the whisky. His wife also testifies he was not there, as. did O. H. Simpson and W. J. Miller. The latter two stayed at the drug store.
Defendant filed a motion for a new trial, and in the motion complained of the misconduct of the jury. In bill of exception No. 5 is presented the testimony of the jury on this motion. One of the jurymen, J. W. Barnes, testified: “Some time during the time we had the case under consideration, I was told that defendant had been keeping his sister-in-law. I would not say this was told me in the jury room, nor could I say where it was; but I do know that it was-after the jury retired, and before they returned a verdict. Some one of the jurors stated in the jury room that defendant had ‘just bought an interest in the Red Cross. Drug Store for the purpose of selling liquor.’ It was discussed in the jury room, and some of the jurors said that there was not a day that whisky was not sold at the Red Cross-Pharmacy, and it was mentioned and discussed that the law was being openly violated there. * * * The jury agreed that, if defendant was guilty at all, he ought to be given the highest penalty, and, after we agreed to a verdict, we all- agreed that we would give him the maximum penalty.”
None of the things this juryman says was discussed by the jury had any basis in the testimony adduced on the trial of this case. Inasmuch as the testimony as to the identity *1072of this defendant as tbe person who made tbe sale is not shown very clearly by tbe state’s witness, and all tbe witnesses for tbe defendant render it impossible for bim to have made tbe sale, and tbis discussion of outside facts is indulged in by tbe jury, we do not tbink tbis verdict ought to be permitted to stand. Defendant was not on trial’ for keeping bis sister-in-law. There was no evidence in tbe record that he was so doing. Tbe reputation of tbe Red Cross Pharmacy at that time should not have been considered, as he was not shown to have had any connection with it at that time.
We do not deem it necessary to consider the other assignments; but, for the errors pointed out, the judgment is reversed, and the cause remanded.