Opinion
No. 29889.
March 21, 1932.
APPEAL AND ERROR.
Instruction that verdict of nine jurors should be verdict of jury held harmless, where it did not appear instruction was acted on (Constitution 1890, section 31, as amended; Code 1930, section 2067).
APPEAL from circuit court of Hancock county. HON.W.A. WHITE, Judge.
Currie, Stevens Currie, of Hattiesburg, for appellant.
The court below erred in giving instruction number five (5) to the plaintiff. At the request of the plaintiff the following imperative and mandatory command was given to the jury.
"The court instructs the jury, that when nine (9) of you have agreed upon a verdict, that that verdict shall be the verdict of the jury."
We do not question the constitutionality of the legislative act authorizing juries in the circuit and chancery courts in their discretion to render verdicts when only nine jurors agree, but we most earnestly submit and urge that the instruction quoted above, by the use of the word "shall" instead of the word "may," violated the common law, constitutional and statutory rights of the defendant, and, we submit, the action of the trial court in giving the instruction to and at the request of the plaintiff unquestionably requires a reversal of this cause.
The right of trial by jury shall remain inviolate, but the legislature may, by enactment, provide that in all civil suits tried in the circuit and chancery court, nine or more jurors may agree on the verdict and return it as the verdict of the jury.
Section 31 of the Constitution of the State of Mississippi; Section 2067, Vol. 1, Mississippi Code, 1930, page 1021.
We deem it fundamental and elementary that any innovation upon a constitutional provision, or limitation upon a common-law right, is to be strictly construed. Such limitations and innovations are not favored, but all presumptions are indulged against their enlargement, and they are universally and uniformly viewed with caution and strictly construed.
An institution (the rights of trial by jury, with all the rights and benefits incident thereto), that has so long stood the trying tests of time and experience, that has so long been guarded with scrupulous care, and commanded the admiration of so many of the wise and good, justly demands our jealous scrutiny when innovations are attempted to be made upon it.
William McRae et al. v. Grand Rapids, etc., R. Co., 17 L.R.A. Ex. Ann. 1913, with note citation to 1922, page 752.
Each and every juror has the right, at any time before the verdict is actually rendered, to change his vote.
Any juror may dissent from a verdict to which he has previously agreed at any time before it is recorded, whether the verdict is written or oral or whether the jury is polled or not.
Section 162, Vol. 35 C.J., p. 234.
The instruction under discussion and given by the trial court to and at the request of the plaintiff, arbitrarily and peremptorily charged the jury that "when nine of you have agreed upon a verdict, that verdict shall be the verdict of the jury."
The evil in the instruction under discussion strikes at the very foundation of the right of trial by jury. It stripped the jury of its one and only chance of arriving at and returning a righteous verdict — the right to deliberate at length, to exchange views and opinions, and to reach, if possible, after calm and unmolested consideration, a verdict which reconciled and expressed the views of every man on the jury.
Wellman's Gentlemen of the Jury, page 283-284.
We submit that it would have been far less prejudicial and a much less transgression of the rights of the defendant, if the trial court had fixed a time limit within which the jury had to return a verdict. Those jurors who were in favor of the defendant would then have had at least a limited time in which to plead and argue the cause of the defendant. And this honorable court has condemned, in unmistakable language, any attempt made by the trial court to limit or hasten the deliberations of the jury, and has forever put at rest any doubt that there may have been upon the question in Mississippi.
Wade v. State, 124 So. 803. E.J. Gex, of Bay St. Louis, for appellee.
Counsel for appellant goes a great length in discussing this instruction No. 5 in the use of the words "shall" instead of "may." Without going to a great length and discussing what the courts have held in regard to the words "may" and "shall" it is universally recognized that the word "may" means "must or shall whenever third persons or the public is interested in the act done," and a reference to the authorities cited in Words Phrases, Volume 3, Second Series, page 333 and Volume 5, Third Series, page 41.
Rickett v. Drew Grocery Company, 124 So. 495.
In the Ricketts case, our court has held that irrespective of whether the jury returned a verdict one way or the other, whether instruction given the jury or not, that when they made it appear that they were unable to agree, and that nine or more jurors had agreed on one verdict, that that in itself made it the verdict of the jury. If the jury had not been instructed in this case on the subject, and returned a verdict of nine jurors, or returned a verdict that they were unable to agree as to the verdict, nine find one way and three the other, then it would have been the duty of the court, and the court would have decided that that was the verdict irrespective of what they decided.
Evidence of the liability vel non of the appellant was for the determination of a jury, and no error, if error at all, was committed by the court below in the giving and refusing of instructions, except in instructing the jury, on the request of the appellee, "that when nine of you have returned a verdict, that verdict shall be the verdict of the jury." The instruction should not have been given in the mandatory form, but should have charged the jury that, if nine or more of them agree on a verdict, they may return the same into open court as the verdict of the jury, or words to that effect. Constitution, section 31, as amended, and section 2067, Code 1930.
It does not appear from the record that this instruction was acted on by the jury, their verdict being, "We, the jury, find for the plaintiff, two thousand dollars." Had the appellant desired, he could have easily have caused the record to disclose whether this was the verdict of less than twelve jurors by having the jury polled when it returned its verdict.
In the absence of such a disclosure, it does not appear that the appellee was harmed by the giving of the instruction.
Affirmed.