Opinion
8 Div. 826.
June 29, 1929. Rehearing Denied October 8, 1929.
Appeal from Circuit Court, Limestone County; James E. Horton, Judge.
Homer Martin was convicted of burglary, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Martin v. State, 220 Ala. 149, 124 So. 393.
From an affidavit offered in support of the motion for new trial it appears that: "One of the jurors, whose name is unknown to affiant, while in the jury room considering the verdict in said cause, leaned out of the window of the jury room and hollered as loud as he could, 'Hey, George Wood.' "
It further appears that on the polling of the jury one juror, in answer to the question was it his verdict, answered, "I reckon so," and upon further questioning by the court stated that the verdict was the verdict of the jury and that he agreed to it.
Thos. C. Pettus, of Athens, for appellant.
Where, on polling the jury, a juror answers in the negative the question whether it is his verdict, the jury must be sent out for further deliberation. Code 1923, § 8699. A true verdict is the voluntary conclusion of the jury after deliberate consideration. Southern R. Co. v. Williams, 113 Ala. 620, 21 So. 328; Int. Agri. Corp. v. Abercrombie, 184 Ala. 244, 63 So. 549, 49 L.R.A. (N.S.) 415; Meadows v. State, 182 Ala. 51, 62 So. 737, Ann. Cas. 1915D, 663. Each juror must agree on a verdict. Way v. State, 155 Ala. 52, 46 So. 273. Misconduct of the jury is sufficient ground for a new trial. 4 Michies Ala. Dig. 488; Brister v. State, 26 Ala. 108; Ala. F. I. Co. v. Courson, 212 Ala. 1, 101 So. 642. Jurors may testify to extraneous facts which may have influenced their verdict. Martin v. State, 216 Ala. 160, 113 So. 602; Taylor v. State, 18 Ala. App. 466, 93 So. 78.
Charlie C. McCall, Atty. Gen., and W. M. Rayburn, Asst. Atty. Gen., for the State.
There was no misconduct on the part of the jury. Holladay v. State, 20 Ala. App. 76, 101 So. 86. In polling a jury, the exact words used by a juror in answering are immaterial if they indicate clearly his individual assent. Moss v. State, 152 Ala. 30, 44 So. 598; Bails v. State, 13 Ala. App. 273, 69 So. 250. Although a juror at first answers evasively, or in the negative, if he finally acquiesces in the verdict, it must be sustained. McApline v. State, 117 Ala. 93, 23 So. 130; Rudder v. State, 12 Ala. App. 72, 67 So. 738.
Appellant was convicted of the offense of burglary, and his punishment fixed at imprisonment in the penitentiary for a term of not less than six nor more than eight years.
We have carefully read the entire record, but deem it unnecessary to mention here any other questions than those discussed by the able counsel representing appellant on this appeal, in his brief.
There was no impropriety in receiving the verdict of the jury because of the, at first, evasive answer of one of the jurors as to its being "his verdict." The court was fully authorized to find, from the examination of said juror on the poll, that the verdict returned represented his convictions. When this is true, the verdict is sufficient and will be received. McAlpine v. State, 117 Ala. 93, 23 So. 130; Rudder v. State, 12 Ala. App. 72, 67 So. 738. And see Moss v. State, 152 Ala. 30, 44 So. 598; Bails v. State, 13 Ala. App. 273, 69 So. 250; and Brown v. State, 141 Ala. 80, 37 So. 408.
Even though one of the jurors, while the jury were deliberating on the case, may be shown to have "called out" the name of another venireman serving during that week of court, but not on the jury trying appellant, we are not persuaded that this would authorize testimony concerning things said and done, during such deliberation, between the jurors trying this case. We find no error of a legally prejudicial nature in any of the rulings on the hearing of appellant's motion for a new trial, nor, for that matter, in any other ruling in the case; and the judgment of conviction is affirmed.
Affirmed.