JORDAN v. UNITED STATES, 22 F.2d 966

RUDKIN, Circuit Judge. About 24 hours after the jury retired to consider of their verdict in this case, the court recalled them of its own motion and propounded the following question, among others: “The Court: I am not’asking you for a division, Mr. Foreman; but I will ask you: Is the jury about evenly divided? You can answer that yes or no. “The Foreman: Yes, sir.” In Burton v. United States, 196 U. S. 283-305, 25 S. Ct. 243, 49 L.

Ed. 482, the presiding judge asked the foreman how the jury was divided, stating that he did not desire to know how many stood for conviction, or how many stood for acquittal, but only how many stood one way, and how many stood the other way, and the foreman replied: “Eleven to one.” In condemning the practice, the Supreme Court said: “We must say, in addition, that a practice ought not to grow up of inquiring’ of a jury, when brought into court because unable to agree, how the jury is divided; not meaning by such question, how many stand for conviction or how many stand for acquittal, hut meaning the proportion of the division, not which way the division may be.

Such a practice is not to be commended, because we cannot see how it may he material for the court to understand the proportion of division of opinion among the jury. All that the judge said in regard to the propriety and duty of the jury to fairly and honestly endeavor to agree could have been said, without asking for the fact as to the proportion of their division; and 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.

Cases may easily be imagined where a practice of this kind might lead to improper influences, and for this reason it ought not to obtain.” This language is perfectly plain, but trial judges continued to make the inquiry, and, in view of the fact that the judgment in the Burton Case was reversed on other grounds, there was a diversity of opinion in the different circuits as to the effect of the ruling. Some courts held that the inquiry itself was ground for reversal, while others condemned the practice, but held that the error was not prejudicial in the particular cases under review.

The latter view was taken by this court. The question again came before the Supreme Court in Brasfield v. United States, 272 U. S. 448, 47 S. Ct. 135, 71 L. Ed. 345, and it is apparent from the opinion.,that the court was determined to settle the question definitely and finally.

After referring to the Burton Case, and to the diversity of opinion in the lower courts as to whether noncompliance with the rule as there announced was reversible error, or whether the expression of the court was hortatory only, the court said: “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 eharge, should be excluded.

Such a practice, which is never useful, and is generally harmful, is not to be sanctioned.” This language is too plain to admit of further controversy. The court condemned both the form of the inquiry and the inquiry itself, and declared that in all future cases any such inquiry should be regarded as ground for reversal. It is idle to say that to ask a jury “If it is about evenly divided” does not require it to disclose “the proportion of division of opinion among'the jury,” or “to reveal the nature or extent of its division.” For this error, the judgment is reversed, and the cause is remanded for a now trial.