The appellant's motion for rehearing in this cause very forcefully presents additional argument in behalf of his bill *Page 614 of exception No. Ten and insists that the original opinion was wrong in failing to sustain same.
The various articles of the statute dealing with the handling of the subject of jury verdicts are copied in the motion and referred to. All of this we have considered, and it is our conclusion that, while appellant has presented a very effective argument, the wrong premise is taken. He bases his argument on the conclusion which he first reaches that when the jury presented their verdict as described in the original opinion and the court read the same and had it read by the clerk, that this was such an acceptance of the verdict as made it final, discharged the jury and relieved it of any further power in the case. If that be correct the argument which follows is logical and based on good authority.
Particular stress is laid on the opinion in Landers v. State,25 S.W.2d 868, wherein it is held that the jury's verdict finding the defendant guilty without malice results in acquittal of the charge of murder with malice. It is sufficient to say that in the Landers case the verdict was received and judgment entered thereon and the court was only considering the consequences of a verdict about the receipt of which there was no question. In the case before us the court read the verdict and had the clerk to read it. Appellant was present in the court room and the record does not indicate that objection was made to the procedure at that particular time. After the clerk had read the verdict, and without announcing that it would be received and the jury discharged and judgment entered thereon, the court, perceiving that the verdict was fatally defective as presented, instructed the jury to return to their room for further deliberation, and called their attention to the paragraph of his charge which instructed them as to the penalty which they might assess for murder with malice and for murder without malice. We are unable to carve out of this any oral instruction to the jury, but merely a reference to that which had already been given them in writing. We are not able to agree with counsel that the court's act in having the verdict read under the circumstances completed his final transaction of receiving the verdict, discharging the jury and entering judgment thereon. It was still within his control, as was the jury. The action he took was not only proper, but it was his duty to do so. Neither are we able to agree that the things he said constituted oral instruction to the jury or undue emphasis on a particular section of his charge. They were as much at liberty, upon returning *Page 615 to the jury room, to adhere to the statement that they found him guilty without malice and reduce the penalty as they were to change the verdict as they did. According to their testimony on the motion for new trial they had made a mistake in filling out the wrong form of verdict and, without further deliberation, corrected that mistake.
The authorities presented by counsel for appellant are not pertinent to the question before us, but we think that Hollingsworth v. State, supra; Williams v. State, supra; Woolfolk v. State, supra, and Gandy v. State, supra, thoroughly support the view of this court that it was the duty of the trial judge to have the verdict corrected when it was discovered a mistake had been made. Bill of Exception No. Ten is not sustained.
Further complaint is made in the motion for rehearing that appellant had not been given a fair and impartial trial before a jury of twelve men, because of the disqualification of a juror on the ground that he could not read and write. This juror was recalled for examination and testified that he was a Czech and said: "I cannot write the English language much, but I can understand; you did not ask me that question before; nobody didn't ask me that question." Further he said: "I take a daily paper, The Temple Daily Telegram. That is printed in English. I read the newspaper some time."
The foregoing is the only evidence we find introduced on the subject. It is wholly insufficient to support the contention, and the objection seems without merit.
We have considered each and every question raised and believe the original opinion properly disposes of them.
The motion for rehearing is overruled.