Appellant was charged by complaint and information with operating an open saloon in Bexar County, and was by the jury sentenced to pay a fine of $500.00. *Page 562
The only complaint we find in the record is to the effect that this verdict of a $500.00 fine was arrived at by lot, and therefore offends against Art. 753, subdiv. 3, C. C. P., in which is set forth as sufficient grounds for the granting of a new trial the following: "3. Where the verdict has been decided by lot, or in any other manner than by a fair expression of opinion by the jurors."
On the hearing of the motion for a new trial there was but one witness used relative to this manner of a quotient verdict, and we set forth his testimony in full:
"My name is C. H. Coates. I was one of the jurors in the trial of the case of The State of Texas vs. Earl Ramsey, tried in County Court at Law No. 1, of Bexar County, Texas.
"During the deliberations of the jury in fixing the amount of the penalty to be given the defendant the jurors agreed to set down the amount that each and every juror thought the assessment should be, that the amount should be added up and divided by six, and that would be the verdict agreed upon by the jury. After that was done it amounted to $583.00, then we decided to cut off $83.00 and make it even $500.00.
"We didn't know how it was coming out, but we put the amounts down and added it up, then divided it and it came out $583.00, then we made our verdict $500.00 after some little discussion.
"CROSS EXAMINATION "Under our agreement we put down the penalty that each juror thought the defendant should get, added it up and divided the amount, and the quotient, after dividing it, would be the penalty to be assessed in this case. We divided the amount and found it was $583.00. Under that agreement we would have rendered a verdict for $583.00. Then some one of the jury, I forget now who it was, said that there was no use having the amount $583.00, make it $500.00. That is after we had divided it up. After we found out that the quotient would be $583.00, somebody said, 'Don't make it $583.00, make it $500.00,' and everybody agreed to that.
"We had already agreed as to the guilt or innocence of the defendant before this proposition of agreement had come up.
"Some of the jurors wanted to give the defendant the limit, $1000.00, and some wanted to give him less. $500.00 was the amount of the verdict finally returned by all of the jurors." *Page 563
It is noted that the jurors agreed that they would each put down the amount they desired as a fine for appellant, and the total result be divided by the number of jurors, and they would abide by the quotient thus found as their verdict, which agreement resulted in the amount of $583.00, and upon a suggestion of some juror they dropped the fraction of $83.00, and allowed the amount of $500.00 to stand as their verdict. It is seen from juror Coates' testimony that they agreed to abide by the quotient of their total amounts divided by the number of jurors, and substantially did so abide, and in our opinion this constituted a verdict by lot. See Sanders v. State,78 S.W. 518; Driver v. State, 38 S.W. 1020.
The agreement to abide by the quotient verdict having been entered into by the jurors, it was the duty of the State to show its abandonment. See Duncan v. State, 135 S.W.2d 114, and cases there cited. Also see Driver v. State, 38 S.W. 1020. Instead of showing an abandonment thereof, we are impressed with the idea that there was a substantial compliance therewith as shown by the testimony. See Driver v. State, supra; also Spicer v. State, 46 S.W.2d 685. We also cite Branch's Penal Code, p. 335, Sec. 656, and authorities there cited.
In our opinion this is shown to be a verdict by lot, or a quotient verdict, and the trial court should have granted a new trial herein.
The judgment is reversed and the cause remanded.
MOTION FOR REHEARING.