agreement is so clearly shown in this case as to require us to hold that the trial court abused his discretion in refusing to grant a new trial. It is true two of the jurors say that they considered that they were bound by the agreement to make their verdict in accordance with the result reached by the method before shown, but neither say that they would not have otherwise agreed to the amount found, and defendant does not complain of the verdict as excessive or unreasonable in amount." In Cochran v. Gritman (1921) 34 Idaho, 654, 203 Pac. 289, wherein affidavits were introduced to show that the jury had used the quotient process, the court, refusing to set aside. the verdict and grant a new trial, said: "The fourth ground urged as error is the alleged misconduct of the jury in arriving by chance at the amount of the verdict returned. Two of the jurors refused to agree to any verdict for respondents, and made affidavits that when the jury retired to consider the verdict two ballots were taken to determine whether it should be for plaintiff or defendant, and that upon the second ballot ten of the jurors favored a verdict for plaintiff; that these ten agreed that they would arrive at the amount of the verdict by each placing the amount he was willing to allow upon a slip, and dividing the aggregate sum thus obtained by twelve, taking the quotient as the verdict. These affidavits then say that this amount was not satisfactory, and after further discussion the process was repeated, except that the total was divided by ten instead of twelve, but that this amount was still not satisfactory. The affidavits conclude 'that, after considerable additional discussion, it was agreed to make the verdict an even sum of $6,000, the nearest amount (in thousands) to the quotient agreed upon.' . . . The second subdivision of C. S. § 6888, gives as one of the grounds for a new trial: 'Misconduct of the jury; and when any one or more jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavits of any one of the jurors.' The purpose of this rule is to prevent jurors from arriving at their verdict by any method of chance, and to require them to deliberate upon any question submitted to them, and to reach their conclusion only after such deliberation. Manifestly, this would not be done if the jurors resorted to chance to determine what the verdict should be. The chief merit claimed for the jury system is that it requires for a verdict the combined judgment of the several members, or of a lawful majority, upon the controverted questions of fact, which can be had only after solemn deliberation. Hence a verdict arrived at by chance is not a verdict within the meaning of the law. There are courts which hold that dividing the aggregate of the sums which each juror is willing to allow by the number of jurors, and taking the quotient as the verdict, is not a chance verdict within the meaning of this rule. In Turner v. Tuolumne County Water Co. (1864) 25 Cal. 397, 1 Mor. Min. Rep. 107, that court said, in passing on this statute, that, where damages are to be assessed by a jury, it not infrequently happens that there is a great diversity of opinion as to the amount which should be given, and where such is the case the verdict must necessarily be the result of mutual concessions. The jury are bound to meet upon a sum upon which their conflicting views will harmonize, and it frequently happens that this mutual sum is the average of the different sums advocated by each juror. . . . A verdict is not subject to be challenged on the ground that it was a chance verdict because the jurors, during the course of their deliberation, in order to compose their differences of opinion as to the amount that should be allowed, undertake to average their judgment, unless it clearly appears that before doing so they each severally agree to be bound by the result of such chance methods after such result has been reached. Sometimes jurors, after returning a verdict, are induced by the losing party to make affidavits impeaching such verdict which reflect upon their intelligence or integrity, and a verdict should only be set aside on the ground that it was arrived at by chance upon a clear showing that it is the result of chance, instead of deliberation." It has been held that it is proper for the jurors to make the figures and resort to the process under consideration merely for the purpose of ascertaining some average as a suggestion for their consideration along with all other matters bearing upon their ultimate finding. Birmingham R. Light & P. Co. v. Clemons (1904) 142 Ala. 160, 37 So. 925; McDonnell v. Pescadero & S. M. Stage Co. (1898) 120 Cal. 476, 52 Pac. 725. In Eastern R. Co. v. Montgomery (1911) Tex. Civ. App. 139 S. W. 885, wherein it appeared that a quotient amount was obtained by the jury merely for the purpose of experiment, and not with any understanding or agreement that it was to control the amount of the verdict, the court held the verdict to be valid. While a verdict reached by adopting the "average theory" is valid, provided there is no previous agreement to abide the result, it has been held that "it is hardly proper to suggest to the jury to ascertain what the average is first, and then to decide whether that is a fair compensation." Kansas City, W. & N. R. Co. v. Ryan (1892) 49 Kan. 1, 30 Pac. 108. The fact that the verdict is for an uneven amount does not of itself show that it is the result of a prior agreement to render a quotient verdict. Cobb v. Hand (1915) 12 Ala. App. 461, 68 So. 541. In Washington Luna Park Co. v. Goodrich (1910) 110 Va. 692, 66 S. E. 977, it appeared that scraps of paper were found in the jury room after it was vacated, on which were written the names of jurymen and amounts opposite their names, which, when added together and divided by twelve produced a result or a quotient of $2,400. It appeared further, however, that the amount was afterward reduced to $2,000 at the suggestion of a juror, which was agreed to. The court held that this was not sufficient evidence to justify the setting aside of the verdict, since it did not show that there was an antecedent agreement to return what is known as a quotient verdict. See to the same effect, Winn v. Cleveland, C. C. & St. L. R. Co. (1908) 143 Ill. App. 71, affirmed in (1909) 239 Ill. 132, 87 N. E. 954. In San Antonio Traction Co. v. Crisp (1913) Tex. Civ. App. —, 162 S. W. 422, it appeared that a quotient of $12,638 was obtained by averaging amounts, and that $12 was then added, as $12,638 "looked ridiculous" to some of the jurymen. This last act the court considered as evidence showing that the jury did not agree beforehand to render a quotient verdict or a verdict rendered by lot. But in Whisenant v. Schawe (1911) Tex. Civ. App. 141 S. W. 146, the fact that a quotient of $1,758 was at the suggestion of a juror reduced to $1,750 "to make it even money" was held not to relieve the verdict of its illegality. And see Galveston, H. & S. A. R. Co. v. Brassell (1915) Tex. Civ. App. 173 S. W. 522. It seems that, even where there is a preliminary understanding that the result found by the process adopted shall be the verdict, a subsequent polling of the jury, and their separate answers, relieve the verdict from all objection. Chandler v. Barker (1838) 2 Harr. (Del.) 387; Pekin v. Winkel (1875) 77 Ill. 56; Roy v. Goings (1885) 112 III. 656; Willey v. Belfast (1873) 61 Me. 569. In Pennsylvania it seems that a quotient verdict is valid so long as it is moderate in amount. Thus it has been said: "It does not necessarily follow that where a jury reaches its verdict by adopting the average amount which is revealed by taking the amount fixed by each juror and dividing the aggregate sum by twelve, it is for that reason entirely invalid and must be set aside." Cleland v. Carlisle (1898) 186 Pa. 110, 40 Atl. 288. Unless the result is manifestly wrong and unjust, the court is not bound to interfere. Cowperthwaite v. Jones (1790) 2 Dall. (Pa.) 55, 1 L. ed. 287. Compare White v. White (1835) 5 Rawle (Pa.) 61. b. Criminal action. Where the jury in a criminal case fixes the term of imprisonment by setting down the periods which each juror favors, and dividing the aggregate by twelve, agreeing in advance to abide by the result, the verdict will be held invalid. State v. Branstetter (1877) 65 Mo. 149; Joyce v. State (1874) 7 Baxt. (Tenn.) 273; Williams v. State (1885) 15 Lea (Tenn.) 129, 54 Am. Rep. 404; Crabtree v. State (1855) 3 Sneed (Tenn.) 302; Hunter v. State (1880) 8 Tex. App. 75; Wood v. State (1882) 13 Tex. App. 135, 44 Am. Rep. 701; Driver v. State (1897) 37 Tex. Crim. Rep. 160, 38 S. W. 1020; White v. State (1897) 37 Tex. Crim. Rep. 651, 40 S. W. 789; Sanders v. State (1904) 45 Tex. Crim. Rep. 518, 108 Am. St. Rep. 973, 78 S. W. 518; Magill v. State (1902) Tex. Crim. Rep., 67 S. W. 1018; Witty v. State (1914) 75 Tex. Crim. Rep. 440, 171 S. W. 229. In Crabtree v. State (1855) 3 Sneed (Tenn.) 302, supra, the court said: "The result is not the deliberate judgment of the jury, produced by argument and reflection, in view of the particular facts of the case before them, but is made to depend upon chance. Any one juror, or a combination of a few of them, by placing the figures very high or low, would have the power to make the punishment unreasonably severe or greatly inadequate. The time agreed upon might not be the deliberate judgment of even a majority, much less that of the entire jury. The defendant, as well as the state, is entitled to the unbiased judgment of the whole, as well as every member of the jury, as to the amount of punishment to be inflicted for the crime of which the defendant is convicted. Such questions are not to be thus trifled with and the administration of justice tainted with gambling verdicts. The sworn triers of one accused of crime should stand free to pass upon the question of the measure of punishment, as well as the guilt of the prisoner, untrammeled by any agreement with his fellows, imposing an obligation which it might be thought among them dishonorable to violate, though against his conscience." 52 A.L.R.-4. The fact that each juror, when the verdict is returned, states that it is his verdict, has been held not to cure or heal the matter. Wood v. State (1882) 13 Tex. App. 135, 44 Am. Rep. 701. And although, after the number of years of punishment has been ascertained, two of the jurors refuse to abide by the result, but after several hours' deliberation do agree, and the same verdict is returned by all the jurors, there being no evidence that the original agreement. has ever been abandoned, the verdict is contrary to law, and a new trial should be granted. Sanders v. State (1904) 45 Tex. Crim. Rep. 518, 108 Am. St. Rep. 973, 78 S. W. 518. It has been held that a verdict reached by the method above mentioned is not rendered valid by the fact that several months are afterwards added, in order to make the number of months an even one, upon a suggestion that it is not customary to return verdicts for parts of a year. Williams v. State (1885) 15 Lea (Tenn.) 129, 54 Am. Rep. 404. To the same effect, see Brookman v. State (1906) 50 Tex. Crim. Rep. 277, 123 Am. St. Rep. 838, 96 S. W. 928. Compare Barton v. State (1895) 34 Tex. Crim. Rep. 613, 31 S. W. 671. And a quotient verdict will not be permitted to stand where the result obtained by the addition and division method is merely used as a basis to ascertain the final result, which is a few dollars less than the quotient, and a time of imprisonment a few days under the quotient. Good v. State (1902) Tex. Crim. Rep., 66 S. W. 1099. In Kentucky it seems that the court of appeals has no power to reverse a judgment in a criminal case, because the term of imprisonment was fixed upon by the jury by each member setting down the term he favored and dividing the aggregate by twelve. Redmon v. Com. (1884) 82 Ky. 333; Smith v. Com. (1895) 98 Ky. 437, 33 S. W. 419. Compare Paducah & E. R. Co. v. Com. (1882) 80 Ky. 147. However, the rule that to vitiate a verdict because it is reached by the Glidewell v. State - Texas. Handley v. Leigh (1852) 8 Tex. 129; Leverett v. State (1877) 3 Tex. App. 213; Warren v. State (1880) 9 Tex. App. 619, 35 Am. Rep. 745; Ulrich v. State (1891) 30 Tex. App. 61, 16 S. W. 769; Pruitt v. State (1891) 30 Tex. App. 156, 16 S. W. 773; Barton v. State (1895) 34 Tex. Crim. Rep. 613, 31 S. W. 671; Driver v. State (1897) 37 Tex. Crim. Rep. 160, 38 S. W. 1020; Hill v. State (1902) 43 Tex. Crim. Rep. 583, 67 S. W. 506; Goodman v. State (1905) 49 Tex. Crim. Rep. 185, 91 S. W. 795; Reyes v. State (1909) 55 Tex. Crim. Rep. 422, 117 S. W. 152; W. 628; McAnally v. State (1900) rows v. State (1903) Tex. Crim. Rep., 72 S. W. 848; Wallace v. State (1906) Tex. Crim. Rep., 97 S. W. 1050; Cravens v. State (1908) 55 Tex. Crim. Rep. 519, 117 S. W. 156, 16 Ann. Cas. 907; Dawson v. State (1913) 72 Tex. Crim. Rep. 68, 161 S. W. 469; Lamb v. State (1914) 75 Tex. Crim. Rep. 75, 169 S. W. 1158; Hicks v. State (1914) 75 Tex. Crim. Rep. 461, 171 S. W. 755; Luna v. State (1915) 77 Tex. Crim. Rep. 659, 179 S. W. 1152; Ingram v. ---- - Thus in Ingram v. State (Tex.) su- pra, the court said: "While our deci- sions hold that an agreement before- ber of years is a verdict by lot, yet many courts hold otherwise, where all jurors agree to it after the result of addition and division has been ascer- tained. We would not be understood as varying from the rule so long ad- hered to in this court, but the deci- sions of this court also have held al- ways that where the result is obtained, and this result is not adhered to, and a different punishment assessed, to which all agree, it is not a verdict by In State v. Linn (1909) 223 Mo. 98, 122 S. W. 679, it appeared that a pa- per was found in the jury box contain- A verdict will be held valid where it appears that the balloting was only for the purpose of ascertaining the sense of the jury as to the amount of punishment, and there was no agree- ment to abide the result, and it is not shown that such balloting had any in- fluence whatever in making up the verdict. Dooley v. State (1867) 28 It has been held that an agreement to fix punishment by average may be abandoned, and that a verdict rendered independently thereof is valid. Reineke And where a verdict reached by the average method imposes a term longer than the minimum allowed by law, the appellate court may modify the judg- ment and permit the verdict to stand for the minimum punishment pre- scribed. Williams v. State (1899) 66 Ark. 264, 50 S. W. 517; Walker v. State (1909) 91 Ark. 497, 121 S. W. 925. In South Dakota a statute (Rev. Code Crim. Pro. § 430, subd. 4) pro- STATE OF FLORIDA EX REL. JOHN M. BRYAN. Gaming, § 4-distribution by result of horse race. 1. When a group of persons, each of whom has contributed money to a common fund and received a ticket or certificate representing such contribution, adopt a horse race the result of which is uncertain, as a means of determining, by chance, which members of the group have won and which have lost upon a redivision of that fund, each contributor having selected a stated horse to win such race, the redeemable value of the certificates so obtained and held by the contributors to such fund being varied or affected by the result of such race, so that the value of some is enhanced, while that of others is reduced or destroyed, the original purchase price of all having been the same, those who chose the winning horse being paid, |