
    PERRYMAN v. STATE.
    (No. 9612.)
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1925.)
    1. Criminal law &wkey;>1092(12) — Bystanders’ bill held entitled to consideration.
    Bystanders’ bill, prepared under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2063, and Vernon’s Ann. Code Cr. Proc. 1916, art. 744 (Code Or. Proc. 1925, art. 667), showing procedure complained of and counsel’s objection, supported by affidavits of bystanders, held\ such as should be considered, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1607, though it did not show presentation to court.
    2. Criminal law <&wkey;889 — Verdict by jury once discharged, then reassembled, held insufficient.
    Where court, after discharging jury as result of controversy whether verdict as related to suspension of sentence was as intended, asked jury to reassemble and consider matter further, with result that verdict was changed, held jury on discharge lost its identity, and verdict last rendered was insufficient to authorize sentence.
    Appeal from District Court, Nacogdoches County; O. A. Hodges, Judge.
    Harrison Perryman was convicted of unlawfully selling intoxicating liquor, and he appeals.
    .Reversed and remanded.
    Adams & Moore, of Nacogdoches, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

It appears that after argument and charge of the court the jury came from their retirement with the following verdict:

“No. 6236.
“The State of Texas v. Harrison Perryman.
“We, the jury, find the defendant, Harrison Perryman, guilty of unlawfully selling intoxicating liquor, as charged in the indictment, and assess his punishment by confinement in the state penitentiary for one year and one day. We further find that he has never before been convicted of a felony in this state or any other state, and that he is under twenty-five years of age, and recommend that his sentence be -suspended.”

From bill of exceptions No. 1 we quote the following:

“The court received the above verdict, and had same handed to the clerk, and ordered the clerk, in the presence of the jury, to read the same; after same was read there seemed to be some misunderstanding regarding the verdict on the part of some of the jurors, in that some of the jurors wanted to talk to the court about the verdict, but the court then had the jury polled, and each and all stated that the above verdict was their verdict, and after the polling. of the jury and being informed that the above was the verdict of the jury, the court then stated to the jury these words: ‘Gentlemen of the jury, you are discharged.’
“ * * * And after the court had discharged the jury by the use of the words aforesaid, the said S. M. Adams, attorney for defendant, stated to the said W. H. Grigsby, who was foreman of the jury, these words: ‘I knew what you wanted to do; you wanted to put into the blank the word “not.” ’
“And after this the foreman, W. H. Grigsby, addressed the court, and remarked that he wanted to inquire of the court about the verdict, and the court asked the other jurors to remain there, and said to Mr. Grigsby these words: ‘Is that your verdict?’ and Mr. Grigsby remarked: ‘Yes; if you understand it, Judge.’ Then considerable wrangling was had by the court and defendant’s attorney, S. M. Adams,, about the correction of the verdict, in that the jury had been discharged and the verdict received, and stated that the verdict could not be corrected, and he asked that sentence (be) passed.
“Whereupon the court then stated to the men who had composed the jury rendering the above verdict to wait, and ordered them to return to the jury room and further consider of their verdict, this being done over the objections of the defendant, and the men who composed the jury returned to the jury room, and under the instructions of the court deliberated some time, and returned into court the following verdict. * * * ”

The verdict returned was the one quoted, save that it stated that the appellant was not under 25 years of age, and that they recommended that his sentence be not suspended.

There was some question raised touching the sufficiency of the bystanders’ bill. It appears that the bill contained the matter hereinabove quoted and also other matters showing the objection of appellant’s counsel to -the procedure. The bill is not signed by the judge, but the affidavits of three bystanders are to the effect that the procedure is correctly recited in the bill, and that the bill of exceptions was presented to the trial judge and that he refused to sign it. The affidavits are not controverted. The statute setting out the requisites of a bystanders’ bill and the conditions under which it may be prepared is article 2063, Vernon’s Texas Civil Statutes, which requisites are by statute made applicable to trials in criminal cases. See article 744, Vernon’s Tex. Crim. Stat. vol. 2; also article 667, C. C. P. 1925. If, as contended by the state, the bill is insufficient to show its presentation to the trial court, its form is such as to command consideration under article 1607, Vernon’s Texas Civil Statutes.

It is to be noted that in the reassembling of the jury it was not a mere correction of an informality in the verdict that was attempted but the rendition of an entirely different verdict. Under tile verdict first received, the right of having the appellant’s sentence suspended was accorded, while in that subsequently written this privilege was denied.

It is believed that before the jurors were reassembled their identity as an organized body had ceased, and the verdict upon which the judgment rests is but the act of a collection of individuals who had previously been members of the jury. To give a verdict the vitality that will authorize the imprisonment of an individual, it is essential that it be by a jury selected and impaneled under the forms of law, and that the verdict be rendered before the jury is dissolved.

Because of the error pointed out, the judgment is reversed and the cause remanded. 
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