delivered the opinion of the court:
Thе plaintiff, James Huwe, sought to recover damages for personal injuries occasionеd by alleged negligence of defendant in installing and maintaining its power lines. A jury returned a verdict for thе defendant. The Circuit Court of Kane County entered judgment on the verdict and plaintiff appeаls.
This matter was tried .before a jury for a substantial period of time extending from May 21 through June 6, 1973. On the morning оf June 7, 1973, closing arguments were presented and the jury was instructed at about 2:00 in the afternoon. They were taken to lunch and began deliberations at about 3 P.M. At 6:40 P.M., the jury foreman advised the bailiff that they wеre stalemated; the bailiff told the jury they would have to go back and work a little longer and then hе reported to the court.
The trial judge had made arrangements to attend a judicial conference and after instructing the jury had left for the conference.
The chief judge had designаted Judge Thomas Burke to temporarily preside. Shortly after 6:40 P.M., both plaintiff arid defendant moved thе court to declare a mistrial. Judge Burke denied both motions.
At about 10:25 P.M., Chief Judge Krause made the fоllowing statement for the record:
“* * * upon Judge Suhler’s departure for Peoria to a confеrence — Judicial Conference, I designated Judge Burke to take over in my position as Chief Judge and that I came and relieved Judge Burke. I guess I have assigned myself here.”
Judge Krause suggested that thе jury be allowed to separate and complete deliberations the following morning. When asked if he had any objection to that procedure, plaintiff’s counsel replied that he did not care. The judge further advised counsel that he proposed to give the deadlockеd-jury instruction from Illinois Pattern Jury Instructions and asked if there was any objection. Plaintiff’s counsel stated that he had no objection.
The jury was returned to the box at 10:40 P.M., and asked if they had reached a verdict. Receiving a negative reply, the court gave the instruction and returned the jury to deliberаtions. At 11:10 P.M., the jury was sent home. They returned at 9 A.M. the next morning and reached a verdict at 10:25 A.M. on June 8, 1973.
On aрpeal plaintiff contends that error was committed in the denial of the motion for mistrial.
He аrgues that the parties, by presenting a joint motion for mistrial, stipulated that substantial justice could not be obtained from this jury, that after the jury was coerced by the bailiff that a verdict could only be reached by a surrender of conscientious conviction, that the custodial judge had no basis fоr an exercise of discretion and, therefore, his action was arbitrary as a matter of lаw.
A party is entitled to the judgment of one judge up to the retirement of the jury to consider their verdiсt, but a judge may turn the case over to another judge after the jury has retired to begin its deliberations. (People v. Mays,
If a motion or other matter develops which requires a personal knowledge of the case, the trial judge should be present. In this case the change of judges, after the retirement of the jury to consider their vеrdict, did not cause the slightest harm to appellant. The substitute judge knew exactly what the bailiff said to the jury; he was informed as to the length of time the cause had been on trial and the amount of timе the jury had been deliberating.
The mere fact that the jurors declare their inability to agree dоes not satisfy the test as to when they may be discharged, nor can a joint motion by the parties сontrol the length of deliberations. Mere inability to agree is not the test. It must appear from the length of time they have been deliberating, and their inability to agree, that it may fairly be presumed thаt they will never agree. (76 Am. Jur. 2d Trial sec. 1109 (1975).) How long a jury is to be kept in deliberation is a matter resting in the sоund discretion of the judge. (People v. Daily,
Here the case was tried for a substantial time, probably in excess of 10 days before the jury. The jury has been out only 3 hours 40 minutes when the motions were made. The judge exercised his discretion in directing the jury to continue its deliberations. It cannot be realistically argued the trial court coerced the jury into returning a verdict.
We affirm the judgment.
Judgment affirmed.
RECHENMACHER, P. J., and T. MORAN, J., concur.