1 S.W.2d 925 | Tex. App. | 1927
The assignment of error is to the effect that the court erred in refusing the request to have the jury polled. In view of objections made by appellee to the consideration of the bills of exception on which the assignment is based, the preliminary question arises of whether it can be said that the record evidences that the appellants made proper timely request to have the jury polled, and that such request was denied by the court. A bystander's bill of exception appears in the record in due form, reciting to the effect that the appellants' attorney made a timely request "that the jury be polled," as stated in the body of the bill presented to the judge for approval and signing. This bill of exception was duly filed within the 90-day order of the court, and was not controverted, as authorized by the statute, by the appellee. Looking alone to that bill of exception, it would fully appear that the appellants' attorney made timely request "to have the jury polled," meaning as to their verdict on all the issues submitted. There also appears as a part of the record, and referred to by appellants, a bill of exception officially signed by the judge and filed by the clerk presenting the matter as, in the opinion of the trial court, it actually occurred. The difference between the two bills is merely as to the form of the request made to the court. The bystander's bill recited that the request made was in the form, namely, "to have the jury polled" as to their verdict. The court's bill recites that the request made was in the form, namely, "to poll the jury on the three special issues 12, 13, and 15." Both agree that there was a refusal by the court to poll the jury upon the request as made. The judge's indorsement on the bill of exception presented to him was, in purpose and intention, a qualification and correction of the facts and the ruling made by the court as stated in the body of the bill presented to him. That was the effect of the recitals therein. There was no refusal on the part of the judge to give any bill of exception at all, and such effect may not reasonably be given to the bill signed and filed. Both of the bills of exception are regular, and either one of them may be regarded as evidencing the proceeding upon which the assignment of error is based. We therefore, in determining the assignment of error, are inclined to regard the court's bill of exception as correctly stating the facts and the ruling of the court relating to the proceeding, and do so regard it. The court was in a better position to understand the phraseology of the request than were laymen, and there is every indication that the trial court acted fairly and in utmost good faith.
The statute provides that:
"Either party shall have the right to have the jury polled, which is done by calling separately the name of each juror and asking him if it is his verdict. If any juror answer in the negative, the jury shall be retired for further deliberation." Article 2206, R.S.
Its object is to ascertain for a certainty that each of the jurors approves of the verdict as returned, and fully assents thereto. Unanimity of the verdict, freely assented to, is the principle involved. Such statute is treated as a matter of right to the party in suit, and not one resting wholly in the discretion of the trial court. Hancock v. Winans,
The pertinent question, then, arises of whether, because the motion requested to have the jury polled as to special issues on less than the whole verdict, such motion would be a wholly insufficient compliance with the statute. That depends upon the terms of the statute. The "right" to the party, as conferred by the statute, is, without limitation or condition, "to have the jury polled." The inquiry of the jury is expressly restricted to "asking him if it is his verdict." And, as must be observed, it is not permissible to go further and question the jurors as to their "understanding of the questions and answers." Hermann v. Schroeder (Tex.Civ.App.)
The judgment is reversed and the cause remanded.
