Further examination of the testimony of the jurors heard upon consideration of the motion for new trial shows without contradiction that the verdict was arrived at in the following manner. After many ballots the jury had been unable to agree upon the punishment, some holding out for two years without a suspended sentence, others insisting on five years with suspended sentence. They finally agreed to take a secret ballot to ascertain how the majority stood on the question, it being further agreed in advance that all would abide by the majority vote, and signify their agreement thereto by holding up their hands. The secret ballot showed seven for two years straight and five for five years with suspended sentence; then in accord with the previous agreement each juror held up his hand to signify his agreement to the two years in the penitentiary without suspension of sentence.
If the majority vote had been taken for the purpose of reaching some basis for further discussion by the jury we would have a different question. The vice is the agreement in advance to be bound by the majority vote, and the standing by such agreement. To sustain a verdict thus arrived at would be against the great weight of authority as shown in the notes annotated under the reported case of Casstevens v. Tex. Pac. Ry. Co., as reported in 73 A. L. R. 89, notes being on page 93. *Page 179 The case mentioned is from the Supreme Court of our own State, reported also in 119 Tex. 456, 32 S.W.2d 637, in which a verdict so arrived at was condemned as not reflecting "a fair expression of opinion by the jurors." The opinion in the case mentioned was followed in Scholz v. Handy Andy Community Stores, Inc., 70 S.W.2d 309. Even in states having no statute such as our own — Art. 753, Subdivision 8, C. C. P. — permitting jurors to testify as to such improper conduct, verdicts arrived at in the manner indicated are severely condemned. State v. Guillory, 163 La. 98, 111 So. 612.
A diligent investigation has failed to reveal any decision from our own Court sustaining such a verdict as here dealt with except Grippon v. State, 119 Tex.Crim. R.,44 S.W.2d 735, and perhaps Stockton v. State, 109 Tex.Crim. R.,5 S.W.2d 996 — if the latter case may be susceptible of such construction. The Grippon case was apparently based upon the opinion on rehearing in Stockton's case. The Grippon case is expressly hereby overruled on the point under consideration and any intention by the Stockton case to uphold a verdict reached as in the present instance is disclaimed, and if subject to such construction it is also overruled on the point here involved.
We make the observations regarding the two cases last above mentioned in order that conflicting opinions may be eliminated.
With the foregoing statements as reasons therefor this is filed as concurring in the opinion on rehearing setting aside the judgment of affirmance and reversing the judgment of conviction and remanding the case for a new trial.