Appellant was convicted of manslaughter, and his punishment assessed at two years in the penitentiary.
It is only necessary to consider one question in the case. In his amended motion for a new trial, appellant insists that he did not have a fair trial on account of the misconduct of the jury. In support of this ground he filed with said motion the affidavit of eight of the jury who rendered the verdict, stating their verdict was an injustice to defendant and given without due reflection; that they had voted a number of times for a verdict of "not guilty," and finding no prospects of an agreement, being tired and worn out, and some being sick and fearing they would be kept together another night, they agreed to a compromise verdict for two years; that they do not now believe from the evidence that defendant is guilty; and seven of the jurors further swear they did not believe defendant wasguilty when they returned the verdict; and all eight jurors join in asking a new trial for appellant.
In the affidavit filed by the State, and signed by the same jurors, they say, as jurors they believed him guilty, as citizens they did not.
In his valuable work on Trials, section 2618, Mr. Thompson says: "Upon grounds of public policy courts "have almost unanimously agreed upon the rule that no affidavit, deposition, or other sworn statement of a juror will be received to impeach a verdict or to explain it, or show upon what grounds it was rendered, or that the juror misunderstood the charge or mistook the law. Nor is it admissible to show, by the oath of the juror, he did not agree to the verdict or consented to it to secure his discharge, or that the verdict was not the verdict of particular jurors." Such is the law in Texas, except as *Page 481 controlled by article 777 of the Code of Criminal Procedure. In Johnson's case, 27 Tex. 759, where three jurors filed affidavits that they had misconstrued the law, the Supreme Court say: "No case has yet occurred in this State wherein courts have tolerated such affidavits to impeach verdicts. If ever admissible, they can only be allowed in an extreme case and under imperative necessity for the accomplishment of justice. The rule rests upon the obvious ground that were it otherwise few verdicts would escape attack from jurors under influences that would be brought to bear upon them after their discharge by the court."
But, while such is the rule, we think the record before us presents such an exception as must necessarily arrest the attention and challenge the consideration of any court. This is not a case where the jurors claim to have misunderstood the law or evidence (Johnson's case, 27 Tex. 759), nor where two or three jurors come in and claim to have been coerced or intimidated (Boetge v. Landa, 22 Tex. 108); nor is there the slightest intimation of undue influence or persuasion in the case, but on the contrary it seems to have been the voluntary act of the jurors shortly after the rendition of the verdict confessing the injustice they were guilty of. While under such influences referred to, two or more members of the jury might sign such an affidavit, it is difficult to believe that two-thirds of a jury sworn to render a true verdict would, from reasons of personal comfort, consent to a verdict against their oaths. But their voluntary affidavit leaves the fact unquestioned, and shows this conviction was concurred in by a jury confessedly incompetent to sit upon the life or liberty of any one. The distinction sought to be drawn between their duty as citizens and as jurors is unworthy of consideration, and does not exist. We may concede the impropriety of permitting such affidavits to be filed, yet, with them before us, it would be wrong to affirm the judgment. It is not a case demanding a reversal because there is a mere probability, but a certainty of injustice done. We think the court erred in his disposition of the case. It would have been more in consonance with the requirements of justice and the dignity of the court to have promptly set aside the verdict, and imposed a heavy fine for contempt upon the jurors making the affidavits. Boetge v. Landa, 22 Tex. 108. Of the remaining four jurors, one is attacked upon the ground of having formed an opinion as to the appellant's guilt which disqualified, and another juror is shown to have been convicted of a felony, but pardoned. It is unnecessary to pass upon these questions so ably presented in the brief of counsel, as they may not arise in another trial.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring. *Page 482