Grippon v. State

MORROW, Presiding Judge. The possession of intoxicating liquor for the purpose of sale is the offense; penalty assessed at confinement in the penitentiary for four years. A recital of the facts it deemed unnecessary. Suffice it to say that they are sufficient to support the verdict. The jury, in their deliberation, after concluding that the accused was guilty of the offense charged, made several attempts to arrive at a verdict [244] by dividing by twelve the sum of the amount of punishment thought proper by each juror. These efforts resulted in a quotient verdict of three and a fraction years. Some of the jurors then suggested that the verdict be even three years, while others suggested that it be four years. A vote was taken upon that proposal which resulted in an equal division of the jury — six for three years and six for four years. This, it seems, was by a written ballot. It is declared by statute that a verdict reached by lot or in any manner other than by a fair and impartial expression of the opinion of the jurors cannot stand. See article 753, C. C. P., subd. 3, 1925. A quotient verdict has been construed to be a verdict by lot. Leverett v. State, 3 Texas App., 213, and many cases collated in Vernon’s Ann. Tex. C. C. P., 1925, vol. 3, p. 9, subd. 3. The fact that the members of the jury agree that each shall write upon a paper the number of years confinemtn in the penitentiary that he deems appropriate in a given case and that the aggregate be divided by twelve, the result ascertained will not be classified as a verdict by lot unless it be shown that prior to the experiment the jurors agree that the result should represent the penalty to be assessed. See Hill v. State, 43 Texas Crim. Rep., 583, 67 S. W., 506; Keith v. State (Texas Crim. App.), 56 S. W., 628; Cockrell v. State, 85 Texas Crim. Rep., 326, 211 S. W., 939; Barnard v. State, 87 Texas Crim. Rep., 365, 221 S. W., 293; McCord v. State, 105 Texas Crim. Rep., 98, 286 S. W., 1094; Harris v. State, 114 Texas Crim. Rep., 647, 26 S. W. (2d) 225; Bledsoe v. State, 111 Texas Crim. Rep., 159, 12 S. W. (2d) 227; Harris v. State, 114 Texas Crim. Rep., 647, 26 S. W. (2d) 225. The record in the present case makes evident that in advance of the experiment there was made by the jurors no agreement that in fixing the penalty they should be bound by the result of the experiment. We are clear in the view that the penalty was not decided by lot. The remaining question is, do the facts show that the verdict rendered does not reflect a fair and impartial expression of the opinion of the jurors? The result of the experiment showed a quotient verdict of less than four years and more than three years. The jurors refused to base their verdict upon the result and took other means of reaching a conclusion by casting a ballot in which six of the jurors favored a three years penalty and six of them favored a four years penalty. It was then agreed by the members of the jury that another ballot be taken to decide whether the penalty assessed should be three years or four years; that this should be determined by a majority vote. The vote was in writing, and when canvassed, showed that seven favored four years and five favored three years. Whereupon the foreman announced that the result of the ballot was a verdict fixing the penalty at four years, which verdict was written and returned to the court as the verdict of the jury. Assuming that the evidence of the jurors [245] touching all of this procedure was properly before the court, which is not entirely clear, the opinion is expressed that the verdict was not shown to have been other than a fair and impartial expression of the judgment of the jurors. See Weatherford v. State, 31 Texas Crim. Rep., 530, 21 S. W., 251; Green v. State, 116 Texas Crim. Rep., 203, 34 S. W. (2d) 280. In the case of Stockton v. State, 109 Texas Crim. Rep., 554, 5 S. W. (2d) 996, seven jurors favored two years confinement in the penitentiary without a suspended sentence and five were in favor of two years with a suspended sentence. One of the jurors suggested that the majority should control and proposed that if, upon another ballot, the majority were in favor of the suspended sentence, that all the jurors agree to two-years. The verdict assessing the penalty at two years confinement in the penitentiary -without the suspended sentence was approved. In Alexander v. State, 69 Texas Crim. Rep., 23, 153 S. W., 436, eleven jurors favored a punishment of two years in the penitentiary. The twelfth favored three years. After discussion, the twelfth juror proposed that he would come to two years and one month if the other eleven would do likewise. Such an agreement was held a mere compromise of the differences of the jurors and not a void verdict. The fact that jurors in their deliberation must of necessity, by interchange of views or experiment such as that under consideration, adjust their differences by yielding their individual judgments and compromising, is illustrated by many decisions and apparently is self-evident. See notes in Corpus Juris, vol. 16, sec. 2702, in which, upon citation of many precedents, the following is-stated: “The fact that a verdict was rendered only after long consideration and was apparently the result of a compromise is not ground for a new trial, where there is no showing that it was obtained improperly. Nor will a new trial necessarily follow from the fact that a juror agrees to-the verdict because the majority favor it, or because he does not wish to have a hung jury, or because he has been charged with an intention to-cause a disagreement; nor will it follow because the verdict is the result of a compromise or an agreement of all the jury to recommend to mercy, or on a promise to sign a petition for a pardon. Where a verdict is the result of lot it will be set aside and a new trial will be granted; but the lottery must be clearly proved; and a new trial will not be granted because of an abortive lottery, the verdict finally being reached by proper balloting.” - The action of the trial judge in receiving the verdict and overruling the motion for new trial indicates that he did not regard the testimony given on the hearing of the motion as showing other than a fair expression of the judgment of the jurors. The judgment is affirmed. Affirmed.