1. An inquiry, put by the trial judge to a jury unable to agree,
asking the extent of its division numerically is
per se
ground for reversal. P.
272 U. S.
449.
2. Failure of counsel to particularize an exception to such an
inquiry does not preclude this Court from correcting the error. P.
272 U. S.
450.
8 F.2d 472 reversed.
Certiorari (269 U.S. 550) to a judgment of the circuit court of
appeals affirming a conviction in a prosecution for conspiracy.
Page 272 U. S. 449
MR. JUSTICE STONE delivered the opinion of the Court.
Petitioners were convicted in the District Court for Northern
California of the offense (§ 37 of the Criminal Code) of conspiracy
to possess and transport intoxicating liquors in violation of the
National Prohibition Act. The conviction was affirmed by the
Circuit Court of Appeals for the Ninth Circuit. 8 F.2d 472. This
Court granted certiorari. 269 U.S. 550; Judicial Code, § 240(a) as
amended.
The only errors assigned which are pressed upon us concern
proceedings had upon the recall of the jury after its retirement.
The jury having failed to agree after some hours of deliberation,
the trial judge inquired how it was divided numerically, and was
informed by the foreman that it stood nine to three, without
indicating which number favored a conviction.
In
Burton v. United States, 196 U.
S. 283,
196 U. S. 307,
where a conviction was reversed on other grounds, this Court
condemned the practice of inquiring of a jury, unable to agree, the
extent of its numerical division, although a response indicating
the vote in favor of or against conviction was neither sought nor
obtained. This Court then said (p.
196 U. S.
308): " . . . we do not think that the proper
administration of the law requires such knowledge or permits such a
question on the part of the presiding judge."
There is a diversity of view in the circuit courts of appeals
whether noncompliance with the rule as stated in the
Burton case is reversible error, or whether the
expressions in that opinion are hortatory only.
See St. Louis
& S. F. R. Co. v. Bishard, 147 F. 496;
Stewart v.
United States, 300 F. 769, 782
et seq.; Nigro v. United
States, 4 F.2d
Page 272 U. S. 450
781, holding that the inquiry requires a reversal.
And
compare Bernal v. United States, 241 F. 339, 342;
Quong
Duck v. United States, 293 F. 563, 564, supporting the view
that the practice, while improper, is not prejudicial error.
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.
Cf. Wiborg v. United States,
163 U. S. 632,
163 U. S. 658
et seq.; Clyatt v. United States, 197 U.
S. 207,
197 U. S. 220
et seq.; Crawford v. United States, 212 U.
S. 183,
212 U. S. 194;
Weems v. United States, 217 U. S. 349,
217 U. S. 362.
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.
It is unnecessary to consider other assignments of error
directed to the instructions given the jury at the time of its
recall.
Judgment reversed.