HEHDERSOH, Judge.
Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $460 and imprisonment in the county jail for six months; hence this appeal.
Appellant complains that the court should have given his special requested charge, instructing the jury with reference to appellant’s right of self-defense in defending his property under articles 677, 680, Penal Code. The difficulty here arose as to the right of appellant to pasture his horse on the lands of the prosecutor, and this involved the right to the possession of said land. The difficulty itself, however, did not occur in the defense of property. Possession was a disputed question. It appears that the land had been awarded to appellant, and prosecutor had been living on that section for some time, and was still living on it. The fact that the altercation grew out of adverse claims to the possession of property would not require a charge involving the right of appellant to protect his claim to the property against an intrusion of the prosecutor. If the absolute possessory right had been in appellant, and he alone had been in actual possession of the property, and the prosecutor was about to trespass thereon, then the charge in question might have been invoked; but we do not understand that to be the status of the case here. The court gave a charge authorizing the appellant to approach prosecutor in a peaceful manner, and inquire about pasturing his horse in the inclosure claimed by him; and if prosecutor, on that account, assaulted him, he would then have the right to act in self-defense, but that he would have no right to assault prosecutor because of the fact that he proposed to pasture his horse in the inclosure which was claimed by both. We think this was sufficient.
Appellant also complains that the court should have given his special requested instruction on threats shown to have been made by the prosecutor against appellant. And he furthermore claims in this connection that the court’s charge on this subject was more onerous than the law requires, in that it required prosecutor to manifest his immediate intention of executing the threats by both acts and words, whereas he contends that he could manifest his purpose by either. We think the court’s charge on this subject adequately presented the law on this phase of the case. There was no controversy that the parties were quarreling just previous to the shooting, and that the prosecutor was using both words and acts. It appears that the indictment charged appellant with an assault with intent to murder, and the court instructed the jury on this subject as well as on aggravated assault.
The jury, after receiving the charge of the court, and being out about a day, reported that they could not agree. The court informed the jury that court would continue another week, and they must reach a verdict, if possible. Subsequent to this the State and defendant agreed that the jury might return a verdict for aggravated assault, and fine the defendant $200, and in accordance with the agreement of the parties the jury were brought into court and informed of this by the judge. The jury then retired, but it seems they did not readily agree. They were again
sent for, brought into court, and the judge informed them verbally that the compromise verdict submitted to them on the day before was not . intended to bind their consciences, and that they were not bound to be governed thereby, but that they could disregard the agreement of the State and defendant, and reach any verdict from the highest to the lowest penalty; that it was desirable that they should reach a verdict, as the costs of the case had already amounted to a great deal, and witnesses had been summoned from other counties, and another trial would cause a great deal of trouble and expense. Appellant contends, and some of his counsel support this contention by their affidavits, that this latter instruction or admonition by the court was not agreed to. However, this is controverted by the State, and the court, in explanation of the bill of exceptions, says: “It was understood that the court should orally inform the jury of said agreement, and call their attention to the fact that the evidence was conflicting, and the court costs incurred, and which probably might be incurred hereafter, was considerable, and to inform the jury the agreement was not intended by the defendants or the district attorney or the court to dictate to them their verdict, but merely submitted the same for their consideration.” This action of the court is assigned as error. Of course, the court would not have been warranted in taking this action, unless with the consent and approval of appellant. We regard the action of appellant in this matter as a withdrawal of his plea of not guilty, and entering a plea of guilty to an aggravated assault, with the consent of the State and the approval of the district judge. The naming of the amount of the fine, we take it, was merely suggestive. At any rate, such is the explanation of the court. The case thus becoming one of misdemeanor, it was competent for the court, with the consent of the parties, to instruct the jury orally, as was done. Appellant seemed anxious for the jury to reach a verdict. The State, on its part, conceded the case, as far as an assault with intent to murder was concerned, and what was done appears to have been for the advantage of appellant. That the jury, exercising their judgment, reached another verdict as to the amount of the punishment, was a matter beyond the control of the court; and this, too, seems to have been understood and agreed to by appellant, as explained by the court.
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HEHDERSOH, Judge.
Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $460 and imprisonment in the county jail for six months; hence this appeal.
Appellant complains that the court should have given his special requested charge, instructing the jury with reference to appellant’s right of self-defense in defending his property under articles 677, 680, Penal Code. The difficulty here arose as to the right of appellant to pasture his horse on the lands of the prosecutor, and this involved the right to the possession of said land. The difficulty itself, however, did not occur in the defense of property. Possession was a disputed question. It appears that the land had been awarded to appellant, and prosecutor had been living on that section for some time, and was still living on it. The fact that the altercation grew out of adverse claims to the possession of property would not require a charge involving the right of appellant to protect his claim to the property against an intrusion of the prosecutor. If the absolute possessory right had been in appellant, and he alone had been in actual possession of the property, and the prosecutor was about to trespass thereon, then the charge in question might have been invoked; but we do not understand that to be the status of the case here. The court gave a charge authorizing the appellant to approach prosecutor in a peaceful manner, and inquire about pasturing his horse in the inclosure claimed by him; and if prosecutor, on that account, assaulted him, he would then have the right to act in self-defense, but that he would have no right to assault prosecutor because of the fact that he proposed to pasture his horse in the inclosure which was claimed by both. We think this was sufficient.
Appellant also complains that the court should have given his special requested instruction on threats shown to have been made by the prosecutor against appellant. And he furthermore claims in this connection that the court’s charge on this subject was more onerous than the law requires, in that it required prosecutor to manifest his immediate intention of executing the threats by both acts and words, whereas he contends that he could manifest his purpose by either. We think the court’s charge on this subject adequately presented the law on this phase of the case. There was no controversy that the parties were quarreling just previous to the shooting, and that the prosecutor was using both words and acts. It appears that the indictment charged appellant with an assault with intent to murder, and the court instructed the jury on this subject as well as on aggravated assault.
The jury, after receiving the charge of the court, and being out about a day, reported that they could not agree. The court informed the jury that court would continue another week, and they must reach a verdict, if possible. Subsequent to this the State and defendant agreed that the jury might return a verdict for aggravated assault, and fine the defendant $200, and in accordance with the agreement of the parties the jury were brought into court and informed of this by the judge. The jury then retired, but it seems they did not readily agree. They were again
sent for, brought into court, and the judge informed them verbally that the compromise verdict submitted to them on the day before was not . intended to bind their consciences, and that they were not bound to be governed thereby, but that they could disregard the agreement of the State and defendant, and reach any verdict from the highest to the lowest penalty; that it was desirable that they should reach a verdict, as the costs of the case had already amounted to a great deal, and witnesses had been summoned from other counties, and another trial would cause a great deal of trouble and expense. Appellant contends, and some of his counsel support this contention by their affidavits, that this latter instruction or admonition by the court was not agreed to. However, this is controverted by the State, and the court, in explanation of the bill of exceptions, says: “It was understood that the court should orally inform the jury of said agreement, and call their attention to the fact that the evidence was conflicting, and the court costs incurred, and which probably might be incurred hereafter, was considerable, and to inform the jury the agreement was not intended by the defendants or the district attorney or the court to dictate to them their verdict, but merely submitted the same for their consideration.” This action of the court is assigned as error. Of course, the court would not have been warranted in taking this action, unless with the consent and approval of appellant. We regard the action of appellant in this matter as a withdrawal of his plea of not guilty, and entering a plea of guilty to an aggravated assault, with the consent of the State and the approval of the district judge. The naming of the amount of the fine, we take it, was merely suggestive. At any rate, such is the explanation of the court. The case thus becoming one of misdemeanor, it was competent for the court, with the consent of the parties, to instruct the jury orally, as was done. Appellant seemed anxious for the jury to reach a verdict. The State, on its part, conceded the case, as far as an assault with intent to murder was concerned, and what was done appears to have been for the advantage of appellant. That the jury, exercising their judgment, reached another verdict as to the amount of the punishment, was a matter beyond the control of the court; and this, too, seems to have been understood and agreed to by appellant, as explained by the court.
Appellant insists that the case should be reversed because the jury assessed the punishment by lot, and he shows in this connection that each juror set down the amount of the punishment he assessed. These were added up and divided by 13, which amounted to a fine of $460 and six months in the county jail. He attaches to his motion the affidavits of two of the jurors, to wit, Sampson and Fowler, to the effect: that they agreed for each man to write his verdict down, and add the whole together, and divide the aggregate amount by 13, which should be the verdict; that they then did this, and the verdict was the one given into court; that, after the first aggregate and division was made, they then made two other aggregates, and then the jury determined by a standing vote to bring in the verdict first found by counting up the
aggregate punishments and dividing by 12; and that said verdict so found by standing vote was the one brought into court. The State introduced a controverting affidavit signed by nine of the jurors. These affidavits show, substantially, that the jury agreed to aggregate the punishment assessed by each, and divide the same by 12, but did not agree in advance to abide by the result. In pursuance of the method adopted, they found three verdicts,—the first, for $460 and six months in jail; the second, for $590 and nine months in jail; and the third for $578 and eight months in jail. After they had taken these three ballots, the jury then discussed the facts and merits of the case, and then took another ballot, which resulted in a fine of $460 and six months in jail. They expressly state that they did not agree, in advance of the method pursued, to abide the result, but each juror expressly reserved to himself the right to call for a ballot until satisfied. And after all the ballots were taken they then discussed the case, and agreed on the verdict reached.' Appellant contends that, notwithstanding the affidavits of the nine jurors, the affidavits of the two jurors were not controverted to the effect that they understood beforehand that the agreement was to be binding. While the jurors Fowler and Sampson both state that they agreed to arrive at their verdict by lot in the method suggested, they do not appear to state distinctly that they agreed to be bound thereby, nor do they distinctly controvert the affidavits of the other jurors that there was no agreement to be bound thereby; and they concede that other ballots were taken afterwards. It seems from these ballots that a majority of the jurors were in favor of a greater punishment; and evidently there must have been anxiety somewhere in the jury to get a lower punishment, and this result may have been super-" induced by these two jurors. At any rate, viewing the affidavits, we do not believe there was an agreement beforehand to be bound by the result, as was held in the cases cited by appellant. See White v. State, 37 Texas Crim. Rep., 651.
We have examined the record carefully, and finding no reversible error, the judgment is affirmed.
Affirmed.