The case of Berry v. People, 1 N. Y. Crim. Rep. 43, in which the defendant was charged with keeping a disorderly house and maintaining an obscene nuisance, was not regarded in People v. Sheldon, supra, as in conflict with the doctrine of recent authority upon the question. In that case the jury, after being charged, retired for deliberation and upon returning to the court asked for further instructions and then announced their inability to agree upon a verdict. In addressing the jury the recorder said: 'I would discharge you, but under my sense of duty I cannot. . . . After a few days, it [the case] has been presented to you, and thoroughly argued and tried, witnesses were examined and cross-examined. I do not care what you find; guilty or not guilty; it is perfectly immaterial to me. But I say it is my duty if you cannot agree, that I shall lock you up for the night; that is a most ungrateful thing for me to do to any jury. As I told you Friday night, I do not want you detained from your families, and I do not now. If you cannot agree, I shall order an officer to take you in charge. I will give you fifteen minutes, and see if you can arrive at a conclusion." In affirming the judgment of conviction the court of appeals in 1 N. Y. Crim. Rep. 57, in per curiam, said: "The alleged threat to lock up jurors if they failed to agree was, we think, only intended as a statement that the jury would have to remain over night, as the court would adjourn. Nothing like a threat of imprisonment or punishment could have been intended." The decision of the court, therefore, was that there had been no attempt at coercion, the language complained of not being susceptible of a construction that would give it that effect with the jury, and not that a judgment would be allowed to stand either where the trial court had attempted to coerce the jury, or the language used by him was of such a character that it probably had that effect.

After the jury in People v. Dixon, 118 App. Div. 593, 21 N. Y. Crim. Rep. 45 had been out all night considering a burglary charge and were unable to agree on a verdict, the presiding judge called their attention to the fact that the case had been tried once before, that two witnesses were in custody, that the jury had probably gotten all the light that could be given to any jury, and that if the defendant was innocent he ought to go free, and then said: "Next to not having any courts at all, in time, it would be almost equally subversive of the administration of justice if time after time juries will not agree. The occasional agreement, that is nothing; that is an incident to the system, but, if we cannot get agreements in Onondaga County, it certainly does very much to cause unrest in the administration of the law. Now, with these suggestions, gentlemen, you may retire."

URGING AGREEMENT-REVERSIBLE ERROR.

Urging the jury to agree was viewed with disfavor in State v. Ivanhoe, 35 Or. 150, in which the defendant was charged with assault with intent to kill. When the jury reported their inability to agree the court told them that a great deal of time had been taken up and if they did not agree the case would have to be tried by another jury who could not arrive at a verdict any better than they could; that it was their duty to agree if they could conscientiously; that they should pay proper respect to the opinions of each other, that the single object to be effected was to arrive at a true verdict, which could only be done by deliberation and mutual concessions; that no juror should violate his conscience, but in determining whether his convictions were sustained, he should consider the opinions of the other jurors, and if he could then conscientiously acquiesce in the verdict, it was his duty to do so.

And in People v. Engle, 118 Mich. 287, which was a prosecution for violation of the local option law, the court stated to the jury upon their announcement that they could not agree, after having deliberated all night that: "The interests of both the people and the respondent are important in this case, and it is very important that you should, if possible under the testimony, agree upon a verdict. . . . I have no doubt that each side has used all the powers of persuasion, that of the individual jurors, to convince his fellow jurors of the case, as it looks to him. Now, suppose you go out and try the reverse, and let each of you try as hard as you can to be persuaded instead of trying to persuade the others. . . . In view, as I have said, of the importance of the verdict in this case, I do not feel like discharging you at this time." Within an hour after this charge the jury returned a verdict of guilty. This statement was held to constitute a reversible error, as it had a tendency to make the jurors feel that they must give way to their honest convictions upon the merits, and agree with the majority, though they had a reasonable doubt of the guilt of the accused.

The same view was taken in Bennett v. State, 10 Ohio Cir. Ct. 84, of the judge's statement in a murder case, that "I do not want to hurry you up unnecessarily, but I cannot get home at all for Sunday, unless I go very soon, and it is that I want to inquire about, I called you in for that purpose. If you are likely to come to a verdict you may retire again and resume your deliberations. Be as expeditious as you conveniently can." A verdict of guilty was returned in a few minutes after this statement.

URGING AGREEMENT-NOT ERROR.

On the other hand, the statements of the trial court in the following cases were not regarded as coercive in character or prejudicial to the rights of the accused.

The trial court may impress upon the jury the importance of the case and urge them to reach a verdict.

Where the jury returns into court and informs the trial judge that they are unable to agree, it is not error for the judge to impress upon them the importance of the case and urge them to listen to argument and sacrifice pride of opinion, and send them back for further deliberation, when it does not appear that the jury was coerced into a verdict by a prolonged session followed by physical suffering. State v. Dudoussat, 47 La. Ann. 977.

The court may admonish a jury which had deliberated twenty-four hours without reaching an agreement, that it was important that they should agree upon a verdict if it was possible for their minds to come together upon the question of the innocence or guilt of the defendant, that they should fairly and frankly consider the testimony and the instructions given them by the court, and if upon further consideration any of them become satisfied that the position first taken by them was wrong, they should not hesitate to yield. In this case considerable time elapsed after the admonition was given before an agreement was reached and a verdict returned finding the defendant guilty of stealing cattle. State v. Garrett, 57 Kan. 132.

And the trial court may properly tell the jury in a murder case, that the guilt or innocence of the accused is a matter for each of them to decide for himself, but that it is for the interest of society that they should reconcile their differences if they can, and agree upon a verdict. Dow v. State, 31 Tex. Crim. Rep. 278.

It is not reversible error for the trial court to say to the jury, on the third trial of a forgery case, after they have been out some time and failed to agree, that it is very important that a verdict should be arrived at, and that they should retire again and make an earnest effort to reach a verdict. State v. Olds, 106 Iowa, 110.

A defendant charged as a common seller of intoxicating liquors has no ground of exception for the statement of the trial judge, that, although the rights of the defendant and the interests of the public require that public prosecutions should be terminated, and while no juror should render a verdict against his convictions, it was a

fact for any dissenting juror's consideration that the rest of the panel differed from him. Com. v. Whalen, 82 Mass. 25.

After the jury, in a case for keeping a common nuisance, had failed to agree, the trial judge said: "As it appears that this case has been tried before, and that the jury were unable to agree, the court hopes, if you conscientiously can, under the instructions given, you will be able to agree before morning." These statements of the trial judge were not regarded as error in Com. v. Kelley, 165 Mass. 175.

Merely directing the jury to return for further deliberation, is not of itself a ground for setting aside a verdict of guilty on the charge of bribing an official, where it subsequently appeared that the disagreement arose entirely from the fact that the jury did not clearly understand the charge of the court in certain particulars, and that when they were further explained they soon reached an agreement. United States v. Ingham, 97 Fed. 935.

There is no impropriety in the act of the court, upon being informed by the jury that there is no likelihood of an agreement, in saying to them: "Well you are sensible men. I do not wish to force you to make a verdict, but I will stay with you the day. Retire to your room and see if you can agree upon a verdict." Jones v. State, 117 Ga. 710.

And merely saying to the jury in a murder case, that the court need not admonish this intelligent jury that it is important to the ends of justice, and to secure public respect for our judicial tribunals, that juries should agree upon verdicts in cases submitted to them, was held in State v. Hawkins, 18 Or. 476, not to be erroneous.

And a statement by the trial judge after the jury had been out all night, that he has determined not to discharge them until they have agreed, was held in State v. Green, 7 La. Ann. 518, not to be error. The propriety of this decision may well be questioned.

In Patterson v. State, 122 Ga. 587, it was held that no error was committed by the trial judge in stating to the jury that he disliked to leave the case with them for further consideration, but it "must be decided by a jury." This expression of regret was construed by the supreme court to the effect that the judge would have been glad to relieve the jury from further service, but, as the issue was a matter which could not be passed upon by a judge, he was obliged to leave it to a jury, and that it did not contain a threat that he would detain the jury until they did agree.

The action of the court in telling the jury in a theft case, to 66 pass on the case as soon as you can, as you are the special venire in the case that will come up next," which statement the court afterward explained by saying that he wanted the jury to commence their deliberations as soon after their dinner as they could, was held in Wilson v. State (Tex. Crim. App.), 28 S. W. 200, to be no ground for reversal, where it did not appear that such action unduly influenced the jury.

The fact that after the jury, in a case for the wilful killing of a mule, had reported that they could not agree, the court stated "if it was about the punishment they could not agree, to return a verdict and the court would fix that matter," was not regarded in State v. Daugherty, 106 Mo. 182, as prejudicial error, where the jury did not follow the instructions, but returned a verdict fixing the defendant's guilt and the punishment.

In State v. Lawrence, 38 Iowa, 51, after the jury in a murder case had failed to reach a verdict after fully six hours' deliberation, the court inquired of them how they stood. Upon being informed by one of the jurors "that they did not know what the opinion of one or two of the jurors was, but that they knew how they voted," the court said: "That if any juror went into that jury box with the pre-determination as to how he should find his verdict, and to hang the jury, or to cause a disagreement if the verdict could not be rendered as he wanted it, he would have a 'happy time of it' to speak facetiously; that it had been reported to the court that two of the jurors went into the jury box for the purpose of controlling the verdict, or securing a disagreement; and that if so, they were infinitely worse than the defendant himself. That he hoped the report was not true; that he did not wish by these remarks, to interfere with the opinion or action of any juror who acts conscientiously, and in accordance with his best judgment." A verdict of the jury was returned in about two hours after these remarks were made to them. The appellate court said that the defendant could not have been prejudiced by the action of the court complained of, as we do not see how any honest and fair minded juror conscientiously seeking after truth and holding with an even hand the scales between the state and the accused, could have returned any other verdict than the one which was rendered. The propriety of the remarks of the court was regarded by the appellate court as somewhat difficult to vindicate, but that they did not constitute reversible error.