The offense is burglary, the punishment confinement in the penitentiary for two years.
Appellant entered a plea of guilty and filed his application for a suspended sentence. The proof showed that he had never theretofore been convicted of a felony. The question of the suspension of the sentence was properly submitted in the charge of the court.
In his motion for a new trial appellant alleged that the jury improperly arrived at their verdict in that it was agreed by the jury that the majority should control on the question as to whether appellant should be confined in the penitentiary for two years or awarded a suspended sentence, and that in accordance with such agreement the minority of five who had voted for the suspended sentence feeling that they were bound by the agreement acquiesced in the return of a verdict assessing appellant's punishment at confinement in the penitentiary for two years. Affidavits of jurors in support of the averments were attached to the motion. Appellant asserts that the manner in which the verdict was arrived at was contrary to Subd. 3 of Art. 753, of our Code of Criminal Procedure, which 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."
The burden of proving misconduct of the jury in the particular alleged rested upon appellant. Kirby v. State,258 S.W. 822. The evidence taken on the motion justified the finding that a ballot was taken after it was determined that the majority of the jury was not in favor of the suspended sentence and that the verdict was not brought about by an involuntary yielding of the convictions of the minority to the majority. It is not shown that the trial judge abused his discretion in finding that the verdict was unanimously agreed to. Unless an abuse of judicial discretion clearly appears, the finding of the trial judge in the matter is conclusive.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.