1. Where a respondent to a petition for certiorari advises the
Court that he can find no ground for opposition, and therefore will
file no opposing brief, and, if the writ issues, will submit the
case without further hearing, the Court, upon granting the writ,
may proceed at once to a decision of the merit. P.
273 U. S.
587.
2. A request in chambers, joined in by the district attorney and
counsel for defendant in a criminal case, that the jury be held in
deliberation until they should agree upon a verdict should not be
construed as authorizing the judge, out of court, and without the
presence of the defendants or their counsel, to receive from the
jury a verdict announcing their findings of agreement as to some
and disagreement as to other defendants, and to return a written
instruction that they also find guilty or not guilty those as to
whom they had disagreed. P.
273 U. S.
587.
3. When a jury has retired to consider its verdict, written
instructions should not be sent without notice to the defendant or
his counsel. P.
273 U. S.
588.
17 F.2d 69 reversed.
Petition for a writ of certiorari to review a judgment of the
circuit court of appeals affirming a conviction of conspiracy to
violate the Prohibition Act. For reasons explained in the opinion,
granting of the writ is accompanied by a disposition of the case
under it.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
The question here for review is the judgment of the Third
Circuit Court of Appeals of February 14, 1927.
Page 273 U. S. 584
A petition for certiorari was filed in this Court February 28,
1927, and is this day granted. For reasons to be explained, we
proceed at once to consider the case on its merits.
Shields, the petitioner, was indicted and tried with eight or
nine others for conspiracy to violate the Prohibition Act and also
for direct violations of the Act. He was convicted of conspiracy
and acquitted of the other charges. The case had been submitted to
the jury February 12, 1926. Before the court convened the next
morning, the jury still being out, counsel for the defendants and
the assistant United States attorney in charge of the prosecution
visited the trial judge in chambers and requested that the jury be
held in deliberation until they should agree upon a verdict.
Shortly after the opening of the court, the jury returned for
additional instructions on the subject of entrapment, and, having
received the same, retired for further deliberation. At 2:30
o'clock that afternoon, the jury again returned to court, in the
absence of petitioner and his counsel, and reported that they could
not agree. What instructions, if any, were then given the jury the
record does not disclose. It appears that the jury again retired to
deliberate, and, between 4:30 and 5 o'clock in the afternoon, sent
from their jury room to the judge in chambers the following written
communication:
"We, the jury, find the defendants John G. Emmerling, Charles
Lynch not guilty on all counts. E. W. Hardison, J. E. Hunter, and
J. L. Simler guilty on all counts. Daniel J. Shields, Harry Widman,
J. M. Gastman unable to agree."
"Signed E. B. Milligan, Foreman."
The judge, from his chambers, sent back the following written
reply:
"The jury will have to find also whether Shields, Widman, and
Gastman are guilty or not guilty."
"F. P. Schoonmaker, Judge. "
Page 273 U. S. 585
These communications were not made in open court, and neither
the petitioner Shields nor his counsel was present, nor were they
advised of them. Shortly after, the jury returned in court and
announced the following verdict:
"We, the jury, find that the defendants John G. Emmerling,
Charles Lynch, not guilty on all counts. E. W. Hardison, J. L.
Simler, J. E. Hunter guilty on all four counts. Daniel J. Shields,
Harry Widman, J. M. Gastman guilty on first count and recommended
to mercy of court. Not guilty on 2d 3d and 4th counts, this 13th
day of February, 1926."
"E. B. Milligan, Foreman."
Upon this verdict, the court rendered its judgment, sentencing
Shields to pay a fine of $2,000 and to be imprisoned in jail for
one year. Shields then filed in court a petition alleging that not
until April 21, 1926, more than two months later, did he or his
counsel have any knowledge of the tentative verdict sent by the
jury to the judge in chambers, or of the reply thereto by the
judge, and praying that he be allowed an exception to the action of
the judge in sending the reply. The court refused to grant the
petition, for the reason, as stated by it:
"that counsel for the defendant Daniel J. Shields requested the
court to hold the jury in deliberation until they should agree upon
a verdict, and therefore, when the court received the communication
from the jury, it was returned with the instructions complained of,
although it is true that the defendant's counsel was not present
when the communication was handed to the court from the jury."
"(Sgd) Per Curiam, S. "
Page 273 U. S. 586
An exception was allowed, however, to the foregoing refusal to
grant an exception, the record reciting in this respect:
"
Eo die an exception to the above refusal to grant an
exception is hereby noted to the defendant Daniel J. Shields."
"F. P. Schoonmaker, Judge."
Shields took the case to the circuit court of appeals, assigning
among other errors the action of the district court in sending the
communication to the jury and the refusal of the court to grant an
exception to that action. The circuit court of appeals, in
affirming the judgment, said:
"The justified reliance of court on the request of counsel,
avoidance of abortive mistrials, and the timely administration of a
court's work, based on the verdict of a jury which had evidence to
support it, all unite in making the case one where, with one
breath, a court cannot be asked by counsel to take a step in a
case, and later be convicted of error because it has complied with
such request, for, as is said in 17 Corpus Juris 373, 374: 'A
defendant in a criminal case cannot complain of error which he
himself has invited.'"
The petitioner urges first that the request joined in by counsel
for the defendants, that the jury be held in deliberation until
they had reached a verdict, could not be properly construed as a
consent that the court might communicate with the jury out of court
and in the absence of the defendants and their counsel; second,
that the action of the district court in thus communicating with
the jury was a denial to petitioner of due process of law; third,
that the judgment of the circuit court of appeals upholding that
action is in conflict with the decision of this Court in
Fillippon v. Albion Vein Slate Co., 250 U. S.
76; fourth, that the instruction in the
Page 273 U. S. 587
communication to the jury that it "will have to find also
whether Shields, Widman, and Gastman are guilty or not guilty" was
additionally erroneous because in violation of ยง 1036 of the
Revised Statutes, which authorizes a jury to bring in a verdict as
to those of the defendants regarding whom they are agreed, and
declares that the case as to the other defendants may be tried by
another jury; fifth, that, in this respect, the instruction of the
district court runs counter to the decision of this Court in
Bucklin v. United States, 159 U.
S. 680,
159 U. S. 682;
and, sixth, that the direction to the jury to bring in a verdict of
guilty or not guilty as to the three defendants named had the
effect of coercing the jury into rendering a verdict which they
were plainly reluctant to return.
The Solicitor General advises us that, after a careful study of
the record in this case, the government is unable to find any
satisfactory ground for opposing the petition for a writ of
certiorari, and that no brief in opposition will therefore be
filed, and, if the writ issues, the government will submit the case
without being heard further.
In view of this, we deem it proper to dispose of the case at
once. On the statement of the case as we have given it, we think
the judgment of the circuit court of appeals must be reversed on
the first and third grounds urged, and the cause remanded to the
district court for a new trial. The joint request to the court of
counsel for the defendant and the assistant district attorney to
hold the jury in deliberation until they should agree upon a
verdict, made in chambers without the presence of the defendant,
cannot be extended beyond its exact terms. It did not include any
agreement that the court should receive a communication from the
jury and answer it, without giving the defendant and his counsel an
opportunity to be present in court to take such action as they
might be advised, especially when the communication as
Page 273 U. S. 588
to the result of the deliberations of the jury showed a marked
difference in the views which the jury had as to the guilt of the
various defendants. Counsel, in making it, necessarily assumed, as
they had a right to, that any communication from the jury would be
made in open court, and that they must necessarily be offered an
opportunity to withdraw the request already preferred or to vary
it. It is hardly fair to say that a general request to hold the
jury for a verdict can be properly applied to such a situation as
subsequently developed by the communication of the jury showing
their views as to the various defendants.
In the case of
Fillippon v. Albion Vein Slate Co.,
250 U. S. 76, which
was a suit for damages for personal injuries, it appeared that,
after the trial judge had completed his instructions, and the jury
had retired for deliberation, and while they were deliberating, it
sent to the judge a written inquiry on the question of contributory
negligence, to which the trial judge replied by sending a written
instruction to the jury room, in the absence of the parties and
their counsel, and without their consent, and without calling the
jury in open court. A new trial was ordered on this account. The
court said:
"Where a jury has retired to consider of its verdict, and
supplementary instructions are required, either because asked for
by the jury or for other reasons, they ought to be given either in
the presence of counsel or after notice and an opportunity to be
present, and written instructions ought not to be sent to the jury
without notice to counsel and an opportunity to object."
If this be true in a civil case,
a fortiori is it true
in a criminal case? The request made jointly by the counsel for the
defendant and for the government to the court did not justify
exception to the rule of orderly conduct
Page 273 U. S. 589
of jury trial entitling the defendant, especially in a criminal
case, to be present from the time the jury is impaneled until its
discharge after rendering the verdict. We reverse the judgment
without reference to the other causes of error assigned.
Reversed.