Duncan v. State , 138 Tex. Crim. 172 ( 1939 )

Appellant has filed a very able brief on several questions in support of his motion for rehearing. We consider it unnecessary to discuss but one proposition, namely, the conduct of the jury in arriving at the verdict. In his original opinion, Judge Krueger announced as authority for his conclusion the case of Stockton v. State, 5 S.W.2d 996. It appeared to all the court at that time that this case was in point and decisive. Upon further examination of the record, however, we have concluded that while the two cases are remarkably similar in all of their aspects, yet there is a difference which puts the present case within the inhibition of the statute. If all of the witnesses who testified on the motion for new trial in the Stockton case had agreed on the facts and by the facts of that case had shown that even some of the jurors had been led into a position where they felt obligated to vote for a conviction and penitentiary sentence contrary to their own judgment in the case, it would have presented a cause for reversal, but there was disagreement as to what occurred, and the trial court, acting within his proper discretion, determined that the jurors ultimately in their votes acted under their own judgments. This Court held that the trial court was authorized under the evidence to so find and upon that theory affirmed the case.

The present case is different. For several days the jury had been unable to agree. Different methods were proposed by which they might get together. One juror suggested that each one write the verdict which he desired on a slip of paper and that all of them be put in a hat and then they would draw a slip which would be the verdict. Other jurors demurred to this procedure because they understood that it would be contrary to law. It was then suggested that a secret ballot be taken and afterwards they would take an open ballot and that the majority in the secret ballot would be followed by each and every one in an open ballot. Prior to this there had been quite a fluctuation in the voting. The appellant had pleaded guilty and asked for a suspended sentence. Two jurors seem to have stood at all times for a five-year suspended sentence and, likewise, two others had voted each time for a two-year penitentiary term. Eight of the jurors changed their votes one way or another so that on one occasion it was noted that ten jurors voted for a penitentiary term of two years while two on the same ballot voted for the five-year suspended sentence. Again, ten voted for a suspended sentence and two for the straight term. On different ballots the voting varied and no one knew what another ballot would bring. It was part of the agreement, as testified to by all jurors, that the final ballot should be by a show of hands openly and that this should go as the majority voted in the secret ballot. The final vote was the confirmation of the majority vote with the purpose and intention that this would make legal what would otherwise be an illegal verdict on a majority vote. It was taken pursuant to the agreement without any change in the opinion of any juror as to what should be the punishment. Some jurors testified on the motion for new trial that they made this agreement and stuck to it; that they never changed their minds but still believed that appellant should have had a suspended sentence; that the reason they held up their hands in the affirmative vote on the last ballot was because they had agreed to do so; that that appeared the only way they would all get together. There was no disagreement as to what occurred. Those who had favored a penitentiary term favored it still and so voted because it was their honest conviction, but those who favored a suspended sentence still favored it but voted for the term in the penitentiary because they had agreed to go with the majority. We view this as contrary to Sec. 3, of Art. 753, C. C. P. The statute is mandatory and directs that a new trial shall be granted: "Where the verdict has been decided by lot, or in any other manner than by a fair expression of opinion by the jurors."

In Leverett v. State, 3 Tex. Cr. App. 213, this Court said:

"(A) verdict * * * should be the result of reason, deliberation, and honest conviction, and not the offspring of chance or accident."

This Court held in the Stockton case, supra that where the jury devises some means of arriving at a figure denominating the number of years of imprisonment and then following the method which arrives at such a period independently of any previous obligation agree to abide by it, the verdict will not be disturbed. See also Gaines v. State, 37 S.W. 331.

It has been held where a jury agrees to determine the number of years imprisonment by lot or by a "quotient" verdict and that they will abide by the result, the burden is then upon the State to show that such agreement was subsequently abandoned. Driver v. State, 38 S.W. 1020.

In White v. State, 40 S.W. 789, it was held that when the State has failed to discharge its burden to show that an abandonment of the agreement had taken place before final verdict that a new trial should have been granted.

We think that such an agreement was entered into in the instant case and that the State did not show, or attempt to show, that there was any abandonment of this agreement. On the motion for new trial several of the jurors testified that they cast their final vote because of their previous agreement to abide by the decision of the majority. Some said that they favored the suspended sentence and still favored it at the time they cast their final ballot and at the time of their examination on the motion for new trial, but that they felt honor bound to carry out their agreement and did so. In fact, the State's own witness, S. L. Davis, so testified.

It has been held in Harris v. State, 26 S.W.2d 225, and Grippon v. State, 44 S.W.2d 735, that where jurors use the "quotient" method of finding by lot the period of years to fix as the penalty without any previous agreement to abide by such a figure when found and they thereafter agree on such a period, there is no error. However, in Spicer v. State,46 S.W.2d 685, where the jurors did agree to abide by the result of the lot, this Court held in the opinion by Presiding Judge Morrow that the verdict is bad even though the final verdict was slightly changed from the figure produced by the prior agreement.

From Branch's Ann. Tex. P. C., p. 535, Sec. 656, we quote the following with the authorities stated in support of it: "If the jurors agree beforehand to be bound by and do abide by the result of striking an average of their respective opinions as to the amount of the punishment, a new trial should be granted although a slight change was made in such result, such as dropping of a fraction. Hunter v. State, 8 Tex. Cr. App., 79; Wood v. State, 13 Tex. Cr. App., 138; Driver v. State,37 Tex. Crim. 164, 38 S.W. 1020; White v. State, 37 Tex. Crim. 651,40 S.W. 789; Good v. State, 67 S.W. 102; Sanders v. State, 45 Tex.Crim. R., 78 S.W. 518; Brockman v. State,50 Tex. Crim. 277, 96 S.W. 928."

While it has been held consistently that where no previous agreement was made or where the previous agreement was not respected after irregular balloting and the verdict finally reached was the expression of the fair will of each juror, there was no error even though irregular methods had been used. In each opinion there seems to be a definite presumption that if there is a previous agreement to be bound by the method, there is error. Dawson v. State, 72 Tex.Crim. R.; Bledsoe v. State, 12 S.W.2d 227; Pruitt v. State, 30 Tex. Cr. App. 156; 42 Tex. Jur. p. 442, Sec. 349.

A decision in this case must turn upon a determination of whether or not there was a previous agreement entered into by the jurors that all would abide the majority vote in the secret ballot and whether or not that finally resulted in the verdict fixing the penalty of two years in the penitentiary. Under the facts of the case as we now see them, and from the testimony of all of the jurors who were called as witnesses on the motion for new trial, no verdict would have been reached except upon that agreement. It was not a fair expression of the judgment of all the jurors at the time the vote was taken and, therefore, a new trial should have been granted.

The motion for rehearing is granted, and the cause is reversed and remanded for a new trial.

CONCURRING OPINION.