QUONG DUCK v. UNITED STATES, 293 F. 563

HUNT, Circuit Judge. Quong Duck was indicted in the first count for concealing and selling opium prepared for smoking, and in the second count for facilitating the transportation, concealment, and sale of opium. He was acquitted under the first count and convicted under the second count, and was sentenced to five years’ imprisonment and to pay a fine of $1,000. He brought writ of error.

After the evidence was concluded and argument was had, the jury returned to the courtroom, where the following proceedings occurred: “The Court: Gentlemen of the jury, have you agreed upon a verdict? “The Foreman: We have not, your honor. “The Court: How does the jury stand? I want to know just how you are divided, not as to your vote whether guilty or not. “The Foreman: The jury stands eight to four. “The Court: I don’t understand, gentlemen of the jury, why a. verdict has not been promptly rendered in this ease. You may retire to your chambers. I hope you will compose your differences.

There ought to be a verdict reached in this case. Anything I can do to assist you, I will do it.” Whereupon the jury retired at 4:05 p. m. for further deliberation, and at 4:20 p. m. returned with the verdict of not guilty on the first count and guilty as charged in the second count of the indictment. Plaintiff in error insists that the interrogatories and remarks of the court constituted prejudicial error.

It is hardly necessary to say that the practice of asking a jury how it is divided numerically is not to be approved, because that is a matter with which the court has no direct concern, and, as was declared in Burton v. United States, 196 U. S. 283, 25 Sup. Ct. 243, 49 L. Ed. 482, cases may easily be imagined where such a practice might lead to improper influences.

But where such a question is expressly limited to the ascertainment of the proportion of division, and expressly excludes any question of what the' proportionate division is, as to the guilt or innocence of the defendant, and the court, after hearing what the division is, directs further deliberation with an expression of hope that the jurors may compose their differences of views, we are not prepared to hold that such question constitutes prejudicial error.

But there is more to the present inquiry, for an affirmance of the judgment herein would sustain a conviction in a felony case, where the judge told the jury, which was unable to agree, that he could not understand why verdict was not' promptly rendered, and that in his opinion the case then under deliberation was one where verdict ought to be reached. Thus, upon the whole case, the court not only followed a practice condemned, but by its added expression of an opinion doubtless impressed the jurors with the belief that the court meant that it was their duty to bring in a verdict against the defendant.

We are therefore constrained to believe that the statements of the court were prejudicial, and that the judgment should be set aside and a new trial-ordered. Reversed and remanded, with directions to grant a new trial. — r>Tflor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes