
    MISSOURI, K. & T. RY. CO. v. SMITH.
    No. 1824.
    Opinion Filed May 14, 1912.
    (123 Pac. 1063.)
    ■TRIAL — -Verdict—Validity. In a ease pending before statehood, the verdict of the jury must be unanimous; and it is error to instruct the jury, over the objection of one of the parties, that less than the whole number can return a verdict; and'it is error to receive a verdict by less than the whole number.
    (Syllabus by Rosser, 0.)
    
      Error from District Court, Craig County; John J. Shea, Judge.
    
    Action by W. M. Smith against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    
      Clifford L. Jackson, Wm. R. Allen, and M. D. Green, for plaintiff in error.
    
      
      Preston S. Davis and Wm. P. Thompson, for defendant in error.
   Opinion by

ROSSER, C.

Over the objection of the plaintiff in error, the court instructed the jury that three-fourths of their number might return a verdict. The verdict was actually rendered by ten jurors. Plaintiff in error duly excepted and saved his exceptions.

This question lias been decided in this court in the cases of Pacific Mutual Life Ins. Co. v. Adams, 27 Okla. 496, 112 Pac. 1026; Kerfoot, Bell & Co. v. Kerfoot, 30 Okla. 19, 118 Pac. 367; Border v. Carrabine, 30 Okla. 740, 120 Pac. 1087. In all these cases, it was held >to be error to receive a verdict of less than the whole number of jurors in cases pending prior to statehood.

This case should be reversed and remanded.

By the Court: It is so ordered.  