People v. Wilson

R. B. Burns, J.

Defendant was convicted by a jury of attempted breaking and entering. MCLA 750.92; MSA 28.287 and MCLA 750.110; MSA 28.305. Defendant appeals his conviction. We reverse.

After approximately 90 minutes of deliberation the jury returned to the courtroom. The foreman advised the court that the jury was unable to agree upon a verdict, and the following colloquy occurred:

"The Court: Well, without saying for whom, how do you stand numerically?

"Mr. Spicketts: Eleven to one.

"The Court: Well, that is not very far from a verdict. You have been at this an hour and a half. You may be seated. I have previously instructed you that it is your duty to determine the facts from the evidence received in open court and to apply the law to the facts and in this way decide the case.

"I am now asking you to return to your jury room for further deliberations. In your deliberations, you should examine the questions submitted with proper regard and consideration for the opinions of others. You should listen to each other’s arguments with an open mind and make every reasonable effort to reach a verdict.

"You will now return to your jury room and resume your deliberations.

"The Court: Any comments or objections to the additional instructions?

’Mr. Buhl [Prosecutor]: No, your Honor.

”Mr. Hanson [for the defendant]: None, your Honor.”

Defendant claims that the trial judge erred by asking the jury for numerical division of the jury.

This precise issue has not been ruled on by the Michigan Courts and there is a split of authority throughout the country. The Federal Courts have prohibited the court from inquiring as to a numerical division of a jury since Brasfield v United States, 272 US 448; 47 S Ct 135; 71 L Ed 345 (1926), wherein Justice Stone stated:

"We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.

"The failure of petitioners’ counsel to particularize an exception to the court’s inquiry does not preclude this court from correcting the error. * * * This is especially the case where the error, as here, affects the proper relations of the court to the jury, and cannot be effectively remedied by modification of the judge’s charge after the harm has been done.”

We agree with Justice Stone that for a trial judge to ask the jury as to their numerical division, when in disagreement, tends to have a coercive effect upon the minority of the jury.

Reversed and remanded for a new trial.

Targonski, J., concurred.