860. Number of Jurors for Verdict-In criminal cases less than felonies three-fourths of the whole number of jurors concurring shall have power to render a verdict. In all other cases the entire number of jurors must concur to render a verdict. In case a verdict is rendered by less than the whole number of jurors, the verdict shall be in writing and signed by each juror concurring therein. (Sec. 19, Art. 2, Const.)

861. Return of Verdict-When the jury have agreed upon their verdict, they may be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the cause must be again tried, at the same or another term. (5918 R. L. 1910.)

862. Presence of Defendant Required-If the indictment or information is for a felony, the defendant must, before the verdict is received, appear in person. If it is for a misdemeanor, the verdict may, in the discretion of the court, be rendered in his absence. (5919 R. L. 1910.)

Verdict in felony case cannot be received in absence of defendant, but once his presence is shown it will be presumed to continue, unless the contrary affirmatively appears. Lawton v. Terr., 8 Okla. 2.

Absence of counsel on return of verdict in presence of defendant does not vitiate same. Hardeman v. State, 15 Okla. Cr. 230, 175 P. 940. In misdemeanor case, verdict may be received in absence of defendant. Keeter v. State, 15 Okla. Cr. 139, 175 P. 263.

863. Proceedings When Jury Appear--When the jury appear, they must be asked, by the court or the clerk whether they have agreed upon their verdict, and if the foreman

answers in the affirmative, they must, on being required, declare the same. (5920 R. L. 1910.)

Reception of verdict is a judicial act and cannot be delegated. Allen v. State, 13 Okla. Cr. 533, 165 P. 745.

864. Form of Verdict-A general verdict upon a plea of not guilty, is either "guilty," or "not guilty," which imports a conviction or acquittal of the offense charged. Upon a plea of a former conviction or acquittal of the same offense, it is either "for the State," or "for the defendant." When the defendant is acquittad on the ground that he was insane at the time of the commission of the act charged, the verdict must be "not guilty by reason of insanity." When the defendant is acquitted on the ground of variance between the charge and the proof, the verdict must be "not guilty by reason of variance between charge and proof." (5921 R. L. 1910.)

A verdict must be sufficient within itself to clearly disclose the offense of which defendant is convicted. Sanders v. State, 13 Okla. Cr. 134, 162 P. 676.

A verdict of "guilty as charged in the information and submit his punishment to the court" is not sufficient to support judgment for the highest degree charged. Campbell v. State, 14 Okla. Cr. 319, 170 P. 915. A verdict of guilty and assessing the punishment “at the minimum of seven years," is sufficient. Munson v. State, 13 Okla. Cr. 569, 165 P. 1162. A verdict of guilty as charged is a verdict of guilty in the highest degree charged. Hardeman v. State, 15 Okla. Cr. 230, 175 P. 948.

A verdict returned upon an issue not submitted, is void. Polk v. State, 15 Okla. Cr. 325, 176 P. 538.

Technical rules of construction should not be applied to a verdict. The verdict should be upheld if the intent of the jury can be ascertained. Walker v. State, 11 Okla. Cr. 340, 127 P. 895; Love v. State, 12 Okla. Cr. 2, 150 P. 913.

Where the charge contains more than one count, but each count charges the same offense in a different form, the verdict need not state upon which count it is based. But where the same act constitutes two or more different offenses, and the different offenses are charged in separate counts, the verdict should state upon which count it is based. Fooshee v. State, 3 Okla. Cr. 668, 108 P. 554.

865. Degree of Crime Must Be Found-Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty. (5922 R. L. 1910.)

"Doubt as to degree of guilt," see Section 840. Cited Smith v. Terr., 14 Okla. 162.

On a charge of murder a verdict may be returned for any degree of manslaughter which is warranted by evidence. Jones v. Terr., 4 Okla. 45.

The jury have the absolute right to fix the degree of crime when the different degrees are submitted. Jones v. State, 8 Okla. Cr. 577, 129 P. 446: Ryan v. State, 8 Okla. Cr. 624, 129 P. 685; Sanders v. State, 13 Okla. Cr. 134, 162 P. 676.

This section should be construed in connection with Sec. 864, and Sec. 870. Bowlegs v. State, 9 Okla. Cr. 69, 130 P. 824.

Defendant cannot be sentenced for an offense higher than that for which he is convicted. Kidd v. Terr., 9 Okla. 450.

866. May Find Any Offense Within that Charged-The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense. R. L. 1910.)

(5923

Included offense, means one included in that charged, not another included in the information. Cochran v. State, 4 Okla. Cr. 379, 111 P. 974.

867. Verdict Where Several Defendants-On an indictment or information against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly, and the case as to the rest may be tried by another jury. (5924 R. L. 1910.)

868. When There are Several Defendants-Upon an indictment or information against several defendants, any one or more may be convicted or acquitted. (5756 R. L. 1910.)

On trial of two or more joint defendants, a verdict may be rendered against any one of them without mentioning the other. Tittle v. State, 7 Okla. Cr. 462, 123 P. 1036.

869. Jury May Reconsider Verdict of Conviction-When there is a verdict of conviction in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict and if, after the reconsideration, they return the same verdict, it must be entered. But when there is a verdict of acquittal, the court cannot require the jury to reconsider it. (5925 R. L. 1910.)

870. Informal Verdict Reconsidered-If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury. (5926 R. L. 1910.)

Where the law fixes no minimum penalty, but does fix a maximum, the verdict may be for any period of time not exceeding the maximum. West v. State, 13 Okla. Cr. 312, 164 P. 327.

The jury have the right to formulate their own verdict, or to return to court and request other forms, if they so desire. Jeffries v. State, 13 Okla. Cr. 147, 162 P. 1137.

871. Judgment When Jury Persist in Informal Verdict-If

the jury persist in finding an informal verdict, from which, however, it can be clearly understood that their intention is to find in favor of the defendant upon the issue, it must be entered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of conviction can be given unless the jury expressly find against the defendant, upon the issue, or judgment be given against him on a special verdict. (5927 R. L. 1910.)

872. Jury May Be Polled-When a verdict is rendered, and before it is recorded, the jury may be polled on the requirement of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation. (5928 R. L. 1910)

Where the verdict was read in open court and the jury asked if such was their verdict and they answered in the affirmative, and then the jury was polled. Held, that such was sufficient compliance with the law. Milligan v. Terr., 2 Okla. 164.

An objection to a verdict should be made at the time it is returned. Tittle v. State, 7 Okla. Cr. 462, 123 P. 1036.

873. Clerk to Record Verdict-When the verdict is given, and is such as the court may receive, the clerk must immediately record it in full upon the minutes, and must read it to the jury and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case. (5929 R. L. 1910)

A verdict must be read to the jury and their assent given thereto before they can be discharged. After returning a verdict of "not guilty," and the jury discharged, they cannot be reassembled for the purpose of correcting the verdict. Petitti v. State, 2 Okla. Cr. 131, 100 P. 1122. The provisions of this section contemplate an oral verdict-has no reference to a written verdict. Nichols v. Terr., 3 Okla. 622.

Defendant Discharged, When-If a judgment of acquittal is given on a general verdict, and the defendant is not detained for any other legal cause, he must be discharged as soon as judgment is given, except that when the acquittal is for a variance between the proof and the indictment or information which may be obviated by a new indictment or information the court may order his detention to the end that a new indictment or information may be preferred in the same manner and with like effect as provided in cases where the jury is discharged. (5930 R. L. 1910).

875. Commitment Upon Conviction-If a general verdict is rendered against the defendant he must be remanded if in

custody, or if on bail he may be committed to the proper officer of the county to await the judgment of the court upon the verdict. When committed his bail is exonerated, or if money is deposited instead of bail it must be refunded to the defendant. (5931 R. L. 1910.)

876. Disposition of Insane Defendants-When it is contended on behalf of the defendant in any criminal prosecution that he is at the time of the trial a lunatic, an insane person, or a person of unsound mind, the court shall submit to the jury a proper form of verdict, and if the jury finds the defendant not guilty on account of such lunacy, insanity or unsoundness of mind, they shall so state in their verdict, and the court shall thereupon order the defendant committed to the state hospital for the insane, or other state institution provided for the care and treatment of cases such as the one before the court, until the sanity and soundness of mind of the defendant be judicially determined, and he be discharged from said institution according to law. (5932 R. L. 1910.)

877. Jury May Assess Punishment-In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant, assess and declare the punishment in their verIdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided. (5933 R. L. 1910.)

Improper to instruct jury to fix the punishment, unless so requested by defendant, but the verdict will not be disturbed on this ground unless the punishment is excessive. Chandler v. State, 3 Okla. Cr. 254, 105 P. 375; Baker v. State, 3 Okla. Cr. 265, 105 P. 379.

Error to refuse to instruct the jury to fix the punishment when so requested by defendant. Dew v. State, 8 Okla. Cr. 55, 126 P. 592; Tudor v. State, 14 Okla. Cr. 67, 167 P. 341.

Discretionary with the court to discharge jury without the consent of defendant, where the jury failed to assess the punishment. Bayless v. State, 9 Okla. Cr. 28, 130 P. 520.

In misdemeanor case, not error to fail to instruct the jury to fix the punishment. Sillix v. State, 11 Okla. Cr. 201, 145 P. 305.

Not error to instruct the jury that they may fix the punishment. Rambo v. State, 13 Okla. Cr. 119, 162 P. 449.

Where the jury has returned a verdict, but announced that they could not agree upon the punishment, it is too late to request that they fix the punishment. Fain v. State. 14 Okla. Cr. 556, 174 P. 296.

878. Court to Assess Punishment, When-Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly. (5934 R. L. 1910.)