DeJarnette v. Cox

| Ala. | Nov 15, 1900

DOWDELL, J.

There was evidence in the case tending to show that the original contract between the parties for the building of the house had been subsequently by agreement modified and changed. The written charge requested by the plaintiff and refused l>y the court withdrew from the consideration of the jury this evidence, and it was properly refused by the court. After verdict for tlio- defendant, a motion for a new trial was made, which was overruled by the court. Numerous grounds were stated in the motion for the granting of a hew trial, but as only one was insisted upon in the argument by appellant’s counsel, we need not consider the other grounds.

The ground insisted on was the action of the court in recalling the jury after they had been charged and had retired to consider their verdict, and further instructing them in the case, and also coercing a verdict by threatened duress; all of which transpired in the absence of the plaintiff and his counsel. The evidence in support of this ground of the motion, we quote from the record; “That after the charge of the. court, the jury retired to the jury room about four o’clock in the afternoon, and after having been out about three hours, they were released by the court and instructed to return the next day, which was June 2d,' 1899, at nine o’clock in the morning, and the jury then separated. On the morning of June 2d, the jury reassembled at nine o’clock, and again retired to the jury room. After considering the case all day (except recess for dinner), the jury was called into court about six P. M., by the court in the absence of the plaintiff and his attorney. The jury was asked if there was any dispute as to the law of the case. One of the jury replied, ‘No, sir; we have fully agreed on the law and the evidence. The majority of us could get a verdict very soon, but it is impossible to come to a verdict.’ Thereupon the court told the jury that when a jury has agreed on the law and the evidence, they were either disqualified or incompetent if they could not make a verdict; that it was their duty to listen at the evidence, and that the jury had until the 2nd of August to come to a verdict, and they had plenty of time to consider it. As. the jury was going out, and part of them had got out, the court said in their presence; to the bailiff, Trepare to stay here .tonight.’ The. jury retired and soon rendered a verdict for the defendant.”

There was no attempt on the part of the court to instruct the jury upon any of the issues in .the case, and therefore that ground of the motion is without support in the evidence.

We think that what the court did say to the jury, under the circumstances, was a clear intimation that they should he kept together until tin; 2d day of August, a period of two months, unless they sooner agreed upon'a verdict. The fact that a verdict was very soon thereafter rendered, notwithstanding the jury had stated to the court that it was impossible to come, to a verdict after an effort of more than a day, we think reasonably and satisfactorily shows that ithe verdict was. not uninfluenced by what the court had said. In the case of the Phoenix Insurance Co. v. Moog, 81 Ala. 343, this court quoted approvingly what was said in Green v. Telfair, 11 Howard Pract. 260, which condemned such action by the trial court. We fully approve of what was there said, that, “A judge has no right to threaten or intimidate a jury in order to affect their deliberations. I think he has no right even to allude to his own purposes as to the length of time they are to he kept together. There should be nothing.in his intercourse with the jury having the least appearance of duress or coercion.”

We are of the opinion that a motion for a new trial should have been granted.

The judgment of the circuit court is reversed and the cause remanded.