Opinion
May Term, 1901.
George M. Diven, for the appellant.
Frederick Collin, for the respondent.
We think it is only necessary, for the disposal of this appeal, to refer to the declarations made by the court to the jury, which to us seem to amount to a coercion of the verdict rendered.
The jury, after being out for some time, returned into court about the hour for the adjournment of the court, and reported a disagreement In the absence of counsel for defendant, the court directed the jury to retire, and upon agreement to report the following day with a sealed verdict, and said: "If you do not agree before seven o'clock, the sheriff will give you your supper; and if you do not agree before seven o'clock in the morning, the sheriff will give you your breakfast." At nine-thirty o'clock the following morning the jury again came into court and reported that the disagreement continued. In the absence of counsel for defendant, the court said to them: "Twelve men who should have no interest in the case, except only to do what is right between the parties, should not be struggling and failing to agree. * * * It is disastrous to the parties to retry a case over and over, and the jury fail to reach a verdict. * * * I certainly hope that there are no stubborn men on this jury. There ought not to be. * * * It is the only case for a jury to be tried at this term, and in my judgment there should not be a failure of this character. * * * If I were a juror, and quite a large proportion of my fellows were against me, and I was standing out, and I thought that they were honest and fair, the first thing I would do would be to get before a large looking-glass and look at myself and see if I could not find out what was the matter with me." Much more of this character was then said to the jury, plainly conveying the idea to the jury that in the opinion of the court it was only a disposition to be stubborn which prevented an agreement, and not at all a conscientious belief reached by reasoning from the testimony. The court then said: "I want you as farmers to hear evidence and tell me what is the best breed of cows for all ordinary purposes; one man would begin to think and he would say that the Jersey is the best cow, because she gives rich milk and more cream, and another man would say the Guernseys are the best, for they give more milk, * * * and if I was to say to those fellows, I want you to get together and I want you to name some certain cow that combines all the best qualities for an average cow, and you cannot have a bit of butter or milk until you do so, how long do you think they would be out? * * * I believe, gentlemen, that you can agree. There is no doubt about it in my mind. * * * If you do not agree before half-past twelve o'clock the sheriff will give you your dinners, and if you do not agree before half-past six he will give you your suppers. I shall instruct him to take care of you, and I will not deprive you of your milk because you haven't yet agreed about this cow."
The impression which must have been created in the minds of the jurors by such language and such illustrations could not be flattering to the integrity or good judgment of any juror who failed to yield his honest belief to the majority. The impression must also have been very deep and firm in the minds of all that there was little hope of liberty unless a verdict was presented; that the only chance to be relieved from their seclusion and their physical sufferings was through a surrender of their individual judgments. There was a clear intention here that unless they agreed upon a verdict of some sort they would be at least subjected to another night of confinement. A verdict under such circumstances must be regarded as the effect of coercion, and should be set aside. It is said in 16 American and English Encyclopædia of Law, 522, that the proper rule to govern in such matters is that "language on the part of the court, the obvious tendency of which is to coerce an agreement on the part of the jury, affords ground for a new trial." We think that an application of this rule, and the rule declared in People v. Sheldon ( 156 N.Y. 268) and in the cases there cited, makes a new trial necessary.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.