Opinion
Rоbert Oshiro was killed when a Pacific Southwest Airlines (PSA) jet crashed in San Diego. Ruby Inouye, the
Inouye Contends the court erred in excluding evidence of Oshiro’s earning capacity. However, the court did not exclude this evidence. When PSA objected to its introduction, Inouye withdrew it. The court committed no errоr.
Inouye contends the court prejudicially erred in giving the following instruction when the jury was unable to reach a verdict: “It is eminently desirable that if you reasonably can, you agree upon a verdict. For the partiеs involved, the case is an important one, and its presentation to you has involved expense to bоth sides. If you fail to agree upon a verdict, the case will have to be tried before another jury selected in the same manner and from the same source as you were chosen. There is no reason tо believe that the case will ever be submitted to a jury more competent to decide it. Of course, by pointing out to you the desirability of your reaching a verdict, the Court is not suggesting to any of you that you surrender conscious convictions of what the truth is and of the weight and effect of all the evidence. It does, howevеr, wish to call to your attention that in most cases absolute certainty cannot be expected, and that while each of you must decide the case for yourself and not merely acquiesce in the cоnclusion of your fellow jurors, you should examine the questions submitted to you with candor and frankness and with propеr deference to a regard for the opinion of others.
“While undoubtedly the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure decisions by a comparison of views and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with defеrence to the arguments arid with a distrust of that juror’s own judgment if that juror finds a large majority of the jury taking a different view of the case. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent that juror’s opinion of the case at that moment or that that juror should not listen to the argumеnts of others who are equally honest and intelligent as that juror.
“Now, in light of this instruction, I’m going to ask you. to go back and make one more endeavor. Discuss the case a little more. Keep in mind that there’s no reason to believe that the case will еver be submitted to a jury more competent to decide it, and see if you can arrive at a verdict thаt is the true verdict in the opinion of nine or more of you.”
This type of instruction was disapproved for use in сriminal trials by the Supreme Court in
People
v.
Gainer
(1977)
PSA claims Inouye waived this issue by offering to stipulate to the instruction and not objecting when it was given. Hdwever, Inouye withdrew her offer to stipulate when PSA refused to stipulate, stating she did not “want to be in any worse position than [PSA] by any acquiescence.” This was suffiсient to preserve the issue for appeal.
The instruction says if the jury did not reach a verdict, the cаse would have to be retried. It also says the jurors should listen with deference to the arguments and distrust their own judgment if they find a large majority taking a different view of the case. In a criminal case the mere presencе of these remarks in a jury instruction is error
(People
v.
Gainer, supra,
Here the circumstances were not coercive. The court did not keep the jury in the jury room for an unreasonably long time after reading the
Moreover, examining the instruction line by line
(Crane
v.
Sears, Roebuck & Co.
(1963)
Judgment affirmed.
Cologne, J., and Work, J., concurred.