
    LUNA v. STATE.
    (No. 3788.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Ceiminal Law &wkey;>1092, 1099 — Bills of Exception — Piling after Adjournment— Necessity fob Order.
    Where the statement of facts and bills of exception in a criminal case were filed after ad: journment of court, without an order entered for the purpose, they will riot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. &wkey;1092, 1099.]
    2. Criminal Law <&wkey;866 — Misconduct of Jury — Verdict by Lot.
    Where, in a prosecution, for theft, to decide the term of imprisonment the jurors agreed to' put down what each juror thought was right, add it up, and divide by 6, which resulted in 7% months as the punishment, but, after debating the matter, the jury concluded not to follow such result, but to give defendant 6 months’ imprisonment, and so wrote their verdict, in the absence of showing that before their first attempt to settle the verdict by lot the jury bound themselves to stand by it, such conduct of the jury presented no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2063; Dee. Dig. <&wkey;866.]
    Appeal from Brooks County Court; J. A. Brooks, Judge.
    Cayetano Luna was convicted of theft, and he appeals.
    Affirmed.
    J. W. Wilson, of Falfurrias, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted for the theft of a gun; the allegation being that the gun was worth $15.

The statement of facts and bills of exception cannot be considered. They were filed after adjournment of the court, and without an order entered for that purpose; therefore they will not be noticed in the disposition of the ease. This about disposes of the record and questions presented in it.

There is one question that perhaps we might notice; that is, the misconduct of the jury, or rather the fact that the jury determined their verdict by lot. This is set out in a bill of exceptions; but it is also made a part of the motion for a new trial, with appended affidavits. The affidavits show that, after the jury retired to consider their verdict, they had not agreed or determined among themselves exactly the length of imprisonment in the county jail. To settle this they agreed among themselves to put down what each juror thought was right, add it rap, and divide by 6. This brought 7% months as the punishment. After discussing the matter a while, they concluded not to follow this, but decided they would give appellant 6 months in the county jail, and so wrote their verdict. It is not shown that the jury, before they added up and divided the number of months, bound themselves to stand by this verdict or quotient. Instead of giving appellant 7% months, they finally, after discussion, agreed to give him 6 months.

We notice this, because it may be it should be considered independent of the bill of exceptions, on account of the affidavits attached to the motion for new trial. But as presented there is shown no error from any viewpoint.

The judgment will, be affirmed.  