People v. Mayer , 114 N.Y.S. 25 ( 1908 )

SEABURY, J.

This is an application for a certificate of reasonable doubt. After the jury had retired, they returned to have a part of the testimony read to them and again retired. Subsequently they notified the court “that there is no possible chance of this jury coming to an agreement.” In response to this notice, the court informed them that it was “very doubtful of the truth of that statement, though the man who wrote it believed it, of course.” The court then informed them that “it is not for the public interest that this case should be tried again.”

The court also charged the jury as follows:

“You have heard all the evidence in this case and the question is, Is the defendant guilty or not guilty on the evidence? and there is no reason within my view except through sympathy or an improper motive of some kind, irrespective of the evidence, why the jurors cannot agree.”

An exception was duly noted to this part of the charge. The charge was certainly erroneous, and, I think, tended to coerce the jury into finding a verdict. Jurors have a right to disagree. When, after a jury announce that they cannot agree, the court tells them that in his view there is no reason why they cannot agree except through sympathy or improper motives, and the jury then return a verdict of guilty, a reasonable doubt arises as to whether the verdict was voluntary or the result of coercion. The public interests never require that a jury shall be coerced to an agreement upon a verdict. When a judge threatens a jury with the imputation of an improper motive if they do not agree, he impairs their freedom of action.

In 16 Am. & Eng. Encyc. of Law, p. 522 (1st Ed.), it is said 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. To insist too strenuously upon the necessity of an agreement may have such effect.”

In view of the opinion of Chief Judge Parker in People v. Sheldon, 156 N. Y. 268, 50 N. E. 840, 41 L. R. A. 644, 66 Am. St. Rep.. 564, any further reference to the authorities is unnecessary. It is urged that, if the charge of the court was erroneous, the error was cured by the fact that, when the exception was taken, the court offered to recall the jury. While it is true that the court did offer to recall the jury, the defendant’s counsel was justified in relying upon his exception in view of the fact that the court denied making the charge to which exception was taken. If the learned court was under the impression that it had not charged in the manner stated, there could be no purpose in recalling the jury.

Motion granted. Settle order on notice.