The offense is burglary; the punishment assessed is confinement in the state penitentiary for a term of two years.
Upon his trial appellant entered a plea of guilty and asked for a suspension of sentence. A review of the evidence, which we deem unnecessary to set forth, has convinced us that the same is sufficient to sustain the jury's verdict.
In support of his plea for suspension of sentence, appellant proved that he was 26 years of age and had not theretofore been convicted of a felony in this or any other state; that his reputation as a law-abiding citizen was good in the community where he resided. The question of suspension was properly submitted in the charge of the court. However, the jury declined to heed his plea for a suspended sentence and assessed his punishment as above stated.
Appellant in due time filed a motion for a new trial in which he charged that the verdict of the jury was arrived at in a manner other than by a fair expression of the opinion of the jurors. He states that after the jury had deliberated for approximately *Page 174 forty hours, during which time several ballots had been taken, one of the jurors proposed to the other eleven that they vote by a ballot and be bound by the vote of the majority, whether the result of the ballot showed five years in the penitentiary with a suspension of sentence or two years in the penitentiary without a suspension. The testimony offered in support of his motion showed that the first ballot cast in pursuance to this agreement showed them to be evenly divided, six to six. The next ballot disclosed that seven were in favor of two years in the penitentiary without a suspension and that five were for five years with a recommendation for suspension. Ten of the jurors testified in support of the allegation that such a proposition was made and agreed to by all the jurors; they stated further, however, that after the second ballot a few minutes of discussion followed, and then the foreman of the jury requested that everyone who was in favor of assessing appellant's punishment at two years without a recommendation for suspension to hold up his hand. That every juror then held up his hand and the verdict was accordingly written, signed by the foreman and returned into court. This would seem to indicate that they did not obey the agreement inasmuch as they took another vote after the majority had voted for two years without a recommendation for suspension of sentence. If they had intended to be bound by the agreement there would have been no need in taking this last vote as they could have written the verdict according to the result of the second ballot. Moreover the court inquired of each of the jurors if this was his verdict, to which each of them nodded, indicating that it was.
Subdivision 3 of Art. 753 Cow. C. P. provides 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."
We think the question here presented is controlled by the decision of this court in the case of Stockton v. State,109 Tex. Crim. 554, 5 S.W.2d 996, wherein almost the identical question here under consideration was fully discussed, both on original hearing and on motion for rehearing. Consequently, we see no need of again discussing it here. For the reasons there assigned, appellant's contention is overruled.
All other matters complained of by appellant have been examined by us and are deemed to be without merit.
The judgment is affirmed. *Page 175
The forgoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.