Rep.; Winters v. State, 33 Tex.Crim. Rep.; Grant v. State, 33 Tex. Crim. 527; State v. Austin Club, 89 Tex. 20, 33 S.W. Rep., 113. In Koenig's case this court held that where a party was charged with playing cards at a public place, to wit, a house where spirituous liquors were retailed, and the evidence showed that it was a private chartered corporation, selling intoxicants to only its members, the money paid for the same being turned into and used as a general fund to replenish the stock of liquors of said corporation when needed, such a house was not one for retailing spirituous liquors, and a public house, under the statute inhibiting the playing of cards at such place.
And, in 1894, this Court again recognized that in a criminal prosecution, the jury must return a unanimous verdict. Grant v. State, 33 Fla. 291, 14 So. 757, 758 (1894). In 1911, this Court confirmed the unanimity requirement in Ayers v. State, 62 Fla. 14, 57 So. 349, 350 (1911), stating that "[o]f course, a verdict must be concurred in by the unanimous vote of the entire jury."
And, in 1894, this Court again recognized that in a criminal prosecution, the jury must return a unanimous verdict. Grant v. State, 33 Fla. 291, 14 So. 757, 758 (1894). In 1911, this Court confirmed the unanimity requirement in Ayers v. State, 62 Fla. 14, 57 So. 349, 350 (1911), stating that “[o]f course, a verdict must be concurred in by the unanimous vote of the entire jury.”
The right of a defendant to poll the jury and the right of a juror to repudiate his or her verdict are derived from common law. As this Court explained in Grant v. State, 33 Fla. 291, 14 So. 757 (1894): By the common-law procedure, then, the verdict of the jury was orally pronounced in open court, then recorded by the clerk, and affirmed by the jury, which was done by that officer saying to them to hearken to their verdict as recorded by the court, and repeating to them what had been taken down for record.
Plaintiff's contention finds support in a number of cases from other jurisdictions and in the only Texas case in which the question appears to have been considered. See Grant v. State, 33 Fla. 291, 14 So. 757, 23 L.R.A. 723 (1894); George v. Belk, 101 Tenn. 625, 49 S.W. 748 (1899); Bino v. Veenhuizen, 141 Wn. 18, 250 P. 450, 49 A.L.R. 1297 (1926); Nobles v. Crockett, 319 P.2d 1007 (Okla. 19 57); Wohlfield v. Morris, 122 So.2d 235 (Fla.App. 19 60); Robertson Tank Lines, Inc. v. Sawyer, 416 S.W.2d 886 (Tex.Civ.App. — Corpus Christi 1967, ref. n.r.e.). In Grant v. State, a murder case, the jury returned a verdict reading, 'We, the jury, find the said defendant guilty of manslaughter in the first degree.' The judge refused to accept the verdict on the ground that there were no degrees of manslaughter and directed the jury to reconsider its verdict.
The opinion does not discuss point two, supra, the propriety of resubmitting only one of the three original verdicts. Petitioner contends the decision of the District Court, approving the resubmission to the jury of only one of three verdicts, conflicts with Grant v. State, 33 Fla. 291, 14 So. 757, 23 L.R.A. 723 (1894); Rentz v. Life Oak Bank, 61 Fla. 403, 55 So. 856 (1911); Bryant v. State, 34 Fla. 291, 16 So. 177 (1894) and Tobin v. Garry, 127 So.2d 698 (Fla.App.2d 1961). The cases cited hold that until the verdicts in a case are received, accepted and recorded by the court, such verdicts are still under the control of the jury.
The jury having returned to the jury room to correct its verdict retained its power as to the form of the verdict and could have returned whatever verdict it decided upon the same as though it had not previously returned a defective verdict. Gianino v. State (1915), 183 Ind. 199; Grant v. State (1894), 33 Fla. 291, 14 So. 757, 23 L.R.A. 723; Turbaville v. State (1877), 58 Ga. 545. Rule 26 of this court provides as follows: "Upon separate petition in writing by either party, on the original hearing of a cause, the court will set it down for oral argument, if 19. the application is made within the time allowed for filing briefs, otherwise, the court in its discretion will refuse the application."
The court's definition of a sale, so far as this case is concerned, is sufficient. The special charges requested by defendant were based upon the theory that the sale of the intoxicants by the defendant to members of the club did not constitute a violation of the local option law, under the facts of this case; and in support of this contention he cites us to the following cases: Koenig v. State, 33 Tex.Crim. Rep.; Winters v. State, 33 Tex.Crim. Rep.; Grant v. State, 33 Tex. Crim. 527; State v. Austin Club (Texas Sup.), 33 S.W. Rep., 113. In Koenig's case, this court held that where a party was charged with playing cards at a public place, to wit, a house where spirituous liquors were retailed, and the evidence showed that it was a private chartered corporation, sellling intoxicants to only its members, the money paid for the same being turned into and used as a general fund to replenish the stock of liquors of said corporation when needed, such a house was not one for retailing spirituous liquors, and a public house, under the statute inhibiting the playing of cards at such place.
. But see Grant v. State, 33 Tex.Crim. 527, 27 S.W. 127, 127–28 (1894) (question of whether a particular clubroom was a public place at the time cards were played was a question of fact for the jury; it was error to take judicial notice in this case when there was evidence that the clubroom was not open to the public at the time cards were played). The State does not contend appellant waived error by failing to object or request the Rule 201 instruction.
To the same effect is the case of Levells v. State, 32 Ark. 585 [(1877)], in which it was held that where the jury has not separated, and as a body is still in the presence of the court, the order of discharge is still in the breast of the court, and may be recalled. See also Jackson v. State, 45 Ga. 198 [(1872)]; Grant v. State, 14 So. 757, 33 Fla. 291, 23 L.R.A. 723 [(1894)], and note at page 732; Taggart v. Com., 46 S.W. 674, 104 Ky. 301, 20 Ky. Law Rep. 493 [(1898)]; Denham v. Com., 84 S.W. 538, 119 Ky. 508, 27 Ky. Law Rep. 171 [(1905)]."