The only contention made in appellant's motion for rehearing is, that the jury arrived at their verdict by lot, and that in declining to reverse for this, we were in error. In view of the insistence of appellant, we have again carefully examined the facts presented in support of this ground of his motion for new trial, and the authorities cited by appellant.
Each of the twelve jurors appeared and gave testimony upon the presentation of said motion, and the trial court, in deciding this question *Page 369 of fact, held against the claim of appellant. It appears that only one of said jurors testified that it was his understanding that there was an agreement among them, to be bound by the result of the addition of the several penalties each thought proper, and the division of this sum by twelve. It appears that this was the only juror who testified, either in words or in effect that this verdict was arrived at by lot, and that all of the others gave testimony opposed to this conclusion. We have carefully examined the testimony of said jurors, and therefrom it appears in substance, that a short time after retirement, they came to an agreement that appellant was guilty of manslaughter, and then engaged in an effort to reach an agreement as to the penalty to be fixed. It seems that most of the jurors favored five years, though some were for four, and one or two for three years. It was presently suggested, according to most of said testimony, that they add the various penalties favored, and divide the result by twelve, as a basis for argument. This computation was made, and the result shown was fifty-three months, or four years and five months. According to the positive testimony of several of the jurors — and this was not denied or questioned by any of them — after such computation, the matter of penalty was further discussed for several hours, and then some one suggested that they agree upon a verdict of four years. The foreman called the jury to order and put the question "that all who agree to a penalty of four years should hold up their hands," and all held them up. While the juror Friday said he did not remember coming to this agreement by holding up their hands, he testified positively that they all agreed on four years. The testimony of this juror is quoted and referred to by appellant in his motion. It appears from this juror's testimony, that it was his understanding, after they all came to an agreement upon manslaughter, that they should put down the amount that each of them thought the penalty should be, divide it by twelve, and the result should be their verdict; though he states that after they put it down and added it up, that they knocked off the five months, and made the penalty even four years. This juror said that he was originally for five years, but agreed to the four year verdict rendered.
Looking to the law applicable to these facts, we find that it has been the invariable rule of this Court to uphold findings made by the trial courts upon such fact issues as are submitted to them, unless it appear to us that such decision is manifestly wrong. See Article 837, Vernon's C.C.P., and authorities cited. As stated by the presiding judge of this Court, in Ulrich v. State, 30 Texas Crim. App., 63: "There was a conflict in the evidence as to the agreement in arriving at the verdict . . . There was a conflict in the evidence on the issue involved, and the court settled that conflict by overruling the motion. This he had the legal right and authority to do. The presumption obtains that the judgment is correct." This Court would not hold the discretion of the trial court to have been abused in a case where *Page 370 one juror testified that there was such an agreement, as is here contended for appellant, if the majority of the jurors testified that no such agreement was had. If it were conceded that Mr. Friday testified that such was his understanding, still, none of the other jurors agreeing with him as to such fact, and most of them being positive that there was no such agreement suggested by any one, we would be compelled, in accordance with our rule in such cases, to uphold the action of the trial court in overruling the motion. Each of the jurors testified positively that all of them agreed on the four year penalty, which was fixed by the verdict. Appellant cites the Sanders case, 45 Tex. Crim. 518, 78 S.W.R., 518; the Driver case, 37 Tex.Crim. Rep.; the Good case, 66 S.W. Rep., 1079; the Good case, 67 S.W.R., 102; the Brookman case, 50 Tex.Crim. Rep., 96 S.W.R., 928; the White case, 37 Tex.Crim. Rep., 40 S.W. Rep., 789, and the Wood case, 13 Texas Crim. App., 135. These, and many similar authorities, are cases in which the evidence adduced in support of the motion for new trial showed that there was an agreement on the part of the jury to abide by the result of the addition and division indulged in. In some of these cases, the facts showed that the exact quotient was not adhered to, but, it appearing that there was an agreement on the part of the jury to be bound by said quotient, this court held in those cases that some slight change after arriving at the quotient did not constitute any variance from the original illegal agreement. We fear appellant's insistence in his motion is based on his failure to observe our statement in the original opinion "that the trial court was warranted in concluding that the addition and division were not to be binding upon them (the jury), and it was not so in fact."
Believing our former decision of the matter correct, and finding ourselves unable to agree with the contention of appellant, the motion for rehearing will be overruled.
Overruled.