Ramsey v. State , 140 Tex. Crim. 561 ( 1940 )

The district attorney of Bexar County has filed a very insistent motion for rehearing in this cause in which there are set up two propositions of law based on the exceptions sustained in the original opinion.

First, it is contended that the evidence on the appellant's motion for a new trial not having been filed before the term of court adjourned, the matter of jury misconduct was not properly before this Court and that, therefore, this court should have affirmed the judgment of the trial court. This contention was followed by a discussion of a long line of authorities, including Hart v. State, 218 S.W. 1054; Salazar v. State,225 S.W. 528; Crowley v. State, 242 S.W. 472; Ash v. State,245 S.W. 927; Anderson v. State, 246 S.W. 376; Mathews v. State, 249 S.W. 1072; Atwood v. State, 257 S.W. 563; and Navarro v. State, 257 S.W. 883.

These cases did so hold, but subsequently thereto the Thirty-ninth Legislature at its first called session enacted into law House Bill Number 360, Chapter 8, page 12, approved on October 14, 1926, which specifically changes the statute on which the foregoing authorities rest. (See Article 760a and 760b, Vernon's Code of Crim. Proc., pocket supplement of Volume 3. Also McBride v. State, 7 S.W.2d 1091.) Therefore, they are no longer authority for the contention made by the district attorney.

The second proposition asserted challenges the conclusions reached in the opinion reversing this case and asserts that where a quotient verdict has been taken and the jury fails to accept or agree upon the quotient arrived at, but thereafter changes same and agrees upon a different penalty, that the trial court did not abuse its discretion in holding that the verdict was not decided by lot.

It must be admitted that the question here raised is one upon which this Court has at times had varied opinions; however, the last expression seems to be found in Spicer v. State,120 Tex. Crim. 440; 46 S.W.2d 685, in which Judge Morrow holds contrary to some of the prior opinions cited by the district attorney in his motion. To the extent that such opinions are contrary they must be to have been modified by the Spicer opinion. Mr. Branch in his appreciated work, at page 335, Sec. 656, considers the subject, citing a number of authorities, in the following language: "If the jurors agree beforehand to be bound by and to 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 a fraction. Hunter v. State, 8 Texas Crim. App. 79. Wood v. State, 13 Texas Crim. App. 138. Driver v. State, 37 Tex.Crim. Rep.; 38 S.W. 1020. White v. State, 37 Tex.Crim. Rep.; 40 S.W. 789. Good v. State,67 S.W. 102. Sanders v. State, 45 Tex.Crim. Rep.;78 S.W. 518. Brookman v. State, 50 Tex.Crim. Rep.; 96 S.W. 928."

An unerring statement is made by this Court in Leverett v. State, 3 Texas App. 213, saying, "a verdict * * * should be the result of reason, deliberation, and honest conviction, and not the offspring of chance or accident." Whatever ill-advised action a jury may take in considering a verdict it must be admitted that they have the power to lay aside mechanical methods and fairly express the judgment of all the jurors. When and if this is done, a legal verdict may be returned. On the other hand if those methods denounced by statute are employed, the jury cannot say that we will accept this as a basis, cling to it as a verdict and by any modification polish it up so as to make it appear to be a fair expression of the free and untrammeled judgment of the jurors. If such is done the verdict cannot stand.

As said by Presiding Judge Hawkins in Duncan v. State, 135 S.W.2d at page 114 (concurring opinion), "If the majority vote had been taken for the purpose of reaching some basis for further discussion by the jury, we would have a different question."

The vice in the case before us lies in the fact that the jury, according to the only witness called, agreed to abide by the quotient which resulted in the fine of Five Hundred Eighty-Three ($583.00) Dollars. They did not set this aside and use that as a basis for further discussions, but "decided to cut off $83.00 and make it even $500.00." The amount taken off is immaterial. The remainder is not, "the result of reason, deliberation and honest conviction," but is the "offspring of chance," as denounced in Leverett v. State, supra. The statute forbidding a quotient verdict was overlooked and it is our duty to give it effect.

The motion for rehearing is overruled.