T. J. Wood, the appellant, was convicted of murder of the second degree, his punishment being assessed at confinement in the penitentiary for the term of forty-six years and three months.
There is but one matter requiring discussion, as the other supposed error will not recur upon a new trial. By affidavits of *138jurors who tried the case, it appears that the jury agreed upon the guilt of the defendant, but were not agreed upon the punishment. In order to determine the length of time that should be imposed, they agreed that “each should put down any number of years not to exceed fifty, and not less than five, add the numbers together and divide by twelve, the quotient being the punishment.” They also agreed, before the numbers were set down, to abide the result. Eleven put down fifty, and one five years. By addition and division the quotient is forty-six years and three months, the amount of the verdict. This vprdict was returned into court, and each juror stated that it was his verdict.
To this process, by which his punishment was ascertained, the defendant objected, and urged his objection in his motion for new trial. The court overruled his motion, and defendant urges this matter as a ground for reversal.
Did the court err in overruling the motion? We think so. The Code of Criminal Procedure provides that new trials in cases of felony shall be granted, “where the verdict has been decided by lot, or in any other manner than by a free expression of opinion of the jurors.” This verdict may not have been reached by lot, but was it a fair expression of opinion of each juror who tried the defendant ?
It will be observed that in the case before us the jurors agreed before the amount was ascertained, that they would abide by the result. This is fatal to the verdict. “A jury may ascertain what the amount will be, and if the amounts produced gives satisfaction, they may return it as their verdict.” But they cannot agree before the amount is ascertained that they will abide by it; and if they do, it is error for which a new trial will be granted. (Harvey v. James, 3 Humph., 157; Leverett v. The State, 3 Texas Ct. App., 213; Baker v. Bennett, 3 Humph., 160.)
“The impropriety consists in the agreement to be bound by the result.” (Dorr v. Fenno, 12 Pick., 521.) Nor will the fact that each juror, when the verdict was returned, stated that it was his verdict, cure or heal the matter. In felony cases the citizen’s life, liberty and character being at stake, the verdict of the jury should be the result of reason, deliberation, and honest conviction, and not the offspring of chance, accident or any agreement which hampers or embarrasses a juror in a free expression of opinion. The judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered November 8, 1882.