State v. Oswald ( 1966 )

Fatzer, J.,

dissenting: I must respectfully dissent from paragraph 3 of the syllabus and the corresponding portion of the opinion dealing with the “additional instruction” after the jury had extended its deliberations into the second day and after the court knew it was deadlocked by an eight to four vote. The additional instruction is similar to the so-called Allen or “dynamite” instruction (Allen v. United States, 164 U. S. 492, 41 L. Ed. 528, 17 S. Ct. 154, decided in 1896) designed to blast loose a deadlocked jury. There is small, if any, justification for its use. That case upholds an instruction as a reminder to juries that “they should listen, with a disposition to be convinced, to each other’s argument.”

My principal concern with the additional instruction is that it is substantially a PIK (10.20, p. 292) instruction and in my judgment it is coercive and has the effect of pressuring a minority of the jurors to sacrifice their conscientious scruples for the sake of reaching a verdict. Particularly is this so with respect to the time when it was given in this case. I used the word “coercive” in the context to mean that the instruction is capable of causing a minority juror to substitute the majority’s opinion for his own — not that he is persuaded to reach a different decision, but that he accepts the majority view in spite of his own conviction as to the defendant’s guilt or innocence.

The so-called Allen or “dynamite” instruction has come into increasing disfavor with the courts. (See, for example, Green v. United States, 309 F. 2d 852; Deadlocked Juries and Dynamite: A critical look at the “Allen Charge,” 31. U. Chi. L. Rev. 386; Jenkins v. United States, 380 U. S. 445, 14 L. Ed. 2d 957, 85 S. Ct. 1059.)

Moreover, this court in Eikmeier v. Bennett, 143 Kan. 888, 896, 57 P. 2d 87, expressly disapproved the charge taken from the original Allen instruction, the court granting reversal because of it. In the opinion Mr. Justice Thiele said:

“The only purpose in giving such an instruction as we have under consideration is to coerce the jury to agree, otherwise there would be no point in giving it. If the trial court felt there would be need to center attention of the entire panel of jurors on the purposes for which it was called, the duties of the individual jurors in consideration of cases in which they might sit, etc., as said in State v. Hathaway, supra, it would be better were it done when the entire panel of jurors first assembles. If not then given, for adequate reasons arising during the trial of a particular action, such an instruction might not be out of place in connection with other instructions given when the cause is submitted to the jury. But even a very temperate instruction, given after the jury has deliberated for some hours, may very easily concentrate attention on the duty of jurors to agree, to the prejudice of one party. To say to a minority that they should reexamine their views in the light of the opinion held by the majority, without putting a like duty on the majority respecting the opinion of the minority, is wrong. The minority may be right and the majority wrong. Until the legislature provides for verdicts by a definite majority of the jury, tlie court, by additional instruction, should not suggest, even faintly, that the opinion of the minority is to be controlled by that of the majority.” (1. c. 896.) (Emphasis supplied.)

In the instant case the jury was instructed as a body, and although the doctrine of reasonable doubt is stated in the general instruction, it was addressed to the jury in its collective capacity. Under our system, the verdict must be the concurrent judgment of all the members of the jury. The jury system rests in good part on the assumption that the jurors should deliberate patiently and long, if necessary, and arrive at a verdict — if, but only if, they can do so conscientiously. In State v. Bybee, 17 Kan. 462, this court, speaking through Mr. Justice Rrewer, stated it was improper for the district court to interfere with the jury by pressuring a minority of the jurors, and said:

“It is not the theory of jury trials, that the individual conclusions of the jurors should be added up, the sum divided by twelve, and the quotient declared the verdict, but that from the testimony each individual juror should be led to the same conclusion; and this unanimous conclusion of twelve different minds, is the certainty of fact sought in the law. Especially is this true in criminal trials. Here should no thought of compromise be tolerated. . . .” (1. c. 467.)

Likewise, in State v. Witt, 34 Kan. 488, 8 Pac. 769, Mr. Justice Johnston said:

“. . . It is die duty of the juror to consult and consider the views of his fellow-jurors, but utimately he must act upon his individual judgment, and . . . if any one of the jury, after having considered all the evidence, and after having consulted witíi his fellow-jurymen, should entertain a reasonable doubt of the defendant’s guilt, they cannot convict. . . .” (1. c. 496.)

The context of the entire record should be considered in determining a coercive effect. Here, the case was submitted to the jury on June 7, and it deliberated upon its verdict until the hour of adjournment. On June 8, the juiy convened and continued its deliberation until the noon hour. At a time not disclosed by the record, but on June 8, when the court knew the jury was deadlocked eight to four and that it had remained eight to four for about an hour, the court, over the defendant’s objection, gave the additional instruction and thereafter, on June 8, at 4:40 p. m., the jury announced it had reached its verdict.

Closely scrutinizing the “additional instruction” I note that the court stated the case had been tried by both sides “at considerable expense;” that there was no reason “to believe that a jury better qualified than you would hereafter be chosen to try this case,” and that there was no reason to believe “any subsequent jury would be in any better position to decide the issues of fact which have been submitted to you.” In my judgment, reference to the trial being “at considerable expense” and that “a jury better qualified” could not be chosen, refers to matters completely outside the issues and was prejudicial. In State v. Beacon Publishing Co., 142 Kan. 734, 42 P. 2d 960, Mr. Justice Burch, speaking for the court, disapproved an instruction which indicated reference to the taxpayers, which in effect nullified a previous instruction which properly authorized a hung jury under the conditions therein stated. In the opinion it was said:

“The court gave the jury two instructions, which follow:

“ ‘Both the state and the defendant are entitled to the separate judgment of each juror. It is the duty of each juror to refuse to concur in a verdict of guilty unless and until he is satisfied that each and every fact necessary to establish the guilt of the defendant has been proved by the evidence to his satisfaction beyond a reasonable doubt.

“ ‘It takes all of the jury to convict or all to acquit. Hung juries are an abomination to any court, an abhorrence to taxpayers and a reproach upon the members thereof.’

“The first instruction is an abbreviation of an instruction to be given in criminal cases which this court has several times approved. The instruction properly authorized a hung jury under the conditions stated. The second instruction nullified the first, because if a juror should do his duty, or a small minority of jurors should do their duty and refuse to concur with the others, their conduct would be an abomination to the court, and abhorrence to the taxpayers and a reproach to themselves. The second instruction was improperly given. (Neely v. Travelers Ins. Co., ante, p. 691.)” (1. c. 744.)

The majority opinion concludes the instruction is not coercive but condemns the giving of it at the time it was given in this case. Be that as it may, the vice of the instruction was the court’s interference with the jury’s function. No matter when the instruction was given (but particularly in this case after the court was aware the jury was deadlocked and after it had deliberated many hours) it gave the jury false notions of the validity and force of the opinion of the majority jurors; it tended to limit full and free discussion in the jury room; it prejudiced the rights of the defendant to a hung jury and a mistrial by tending to stifle the dissenting voice of minority jurors. (Green v. United States, supra.)

I appreciate the considerations which induced the district court judge to give the additional instruction and fully sympathize with the spirit which controlled him, but, nevertheless, I am of the opinion he passed beyond the line which should limit the counsels and instructions of a court to a jury, and that thereby the material rights of the defendant were prejudiced. I would reverse the judgment.