The opinion
On Rehearing
In his brief in support of the application for rehearing counsel fqr appellant has requested that we set out that portion of the court’s oral charge in which the jury was instructed as to a quotient verdict. In order to afford a full review we are glad to comply with this request. In this connection, the court charged as follows:
“Now, I am going to charge you another thing, without any implication from it whatsoever as to what we think about it, but sometime jurors when they decide, that they are known to do this: When they decide the defendant is guilty in order to be imprisoned in the penitentiary for a number of years, and they have some difficulty in agreeing upon the number of years, they make an agreement among themselves, each one of us write down on a slip of paper the number of years that we think the defendant ought to have; and we will add those numbers of years up and then we will divide it by twelve and we agree that we will impose imprisonment on the defendant for the number of years according to the division by twelve. Now, that can’t be done that way. If you make any such agreement before you make the division or during the division, then' that would be what we call a quotient verdict; and a quotient verdict is unlawful. You can not •make any such agreement that is all abiding by that division. Now, if you did that, and the court were informed of evidence of that fact, the court would-have to set aside the verdict, because it is an illegal verdict. But on the other hand, there is no law to prevent you from saying if you want it fixed that way if you have any idea how it ought to be done in your deliberations. And I want to say here when we give you this definition of quotient, we are not trying to tell you that ought to be doiie, or this defendant ought to be guilty, or imprisonment in the penitentiary, we are just merely telling you some of the things you can’t do in the event you do-find him guilty. Now there is no law against you adding it up — WE ARE not making the suggestion that you do-—there is no law against you adding it all up, and seeing how it comes out, and THEN adopting that if you want to; but you can not make any agreement before hand.
“In excepting to the charge, the following appears.
“We except to that portion of the-charge where the Court charged the jury about a quotient verdict.
“We except to that portion of the-charge where the court said, ‘there is-no law against you in your deliberations, to keep you in your deliberations, from adding it up, and seeing how it comes out, then adopting that.’
“The Court: All right, gentlemen of the jury, of course, when you add that up, if you do, add it up, I am telling— I am not telling you to; and, of course,, you have a right to adopt it as your verdict if you think that is the proper-course to—
“Mr. Tipler: We except to that what the Court just said, ‘When yout add it up.’
*559 “The Court: All right, gentlemen, you retire and make up your verdict.”
We adhere to our former conclusions, and accordingly this application for rehearing is overruled.
Application overruled.