Stockton v. State , 109 Tex. Crim. 554 ( 1928 )

We understand what occurred in the jury room to be about as follows: Appellant having entered his plea of guilty the only thing for the jury to determine was the punishment; seven jurors were for two years without suspended sentence, and five were in favor of two years with suspended sentence; some one of the jurors suggested that the majority should control and proposed that if upon another ballot the majority were not in favor of a suspended sentence that all the jurors agree to the two years. This proposition was consented to, and upon another ballot seven were for two years without suspended sentence and the five jurors then "came over" — as most of the jurors expressed it — and joined in the verdict which was returned. The five jurors who were originally for the suspended sentence testified that they thought the judgment of the majority was perhaps better than their own. A re-examination of the question leaves us still unable to agree with appellant that the record shows the verdict to have been reached in a manner contrary to Subd. 3, Art. 753, C. C. P., set out in the original opinion. A new trial will not necessarily follow where some jurors agree to the verdict because the majority favor it (Corpus Juris, Vol. 16, Sec. 2702), nor because a juror does not wish to have a hung jury (Powell v. State, 79 Tex.Crim. Rep.,187 S.W. 324), nor because a juror claims to have yielded his judgment in an effort to agree with other jurors (Chant v. State,73 Tex. Crim. 345, 166 S.W. 513). See also Montgomery v. State, 13 Tex.Crim. Rep.; Pilot v. State, 38 Tex. Crim. 515,43 S.W. 112; Kirby v. State, 96 Tex.Crim. Rep.,258 S.W. 822. It is seldom that all jurors agree at once upon any issue and verdicts are usually reached by a surrender of some individual views in favor of those entertained by a majority of the jury.

The motion for rehearing is overruled.

Overruled.