Defendant was involved in a short-lived fight at the Hop Scotch Bar in Fort Pierre. After the incident, the defendant’s victim swore out a complaint charging defendant with assault and battery, a misdemeanor. A few weeks later, at the victim’s request, the Stanley County State’s Attorney dismissed thе misdemeanor charge and a preliminary information charging a felony of assault with intent to inflict great bodily injury was substituted. Following a preliminary hearing, defendant was bound over and stood trial before a Stanley County jury. The jury returned a verdict of guilty on the lesser included offense of assault and battery. Defendant appeals from the jury verdict and judgment of conviction.
The defendant raises three issues in his appeal:
*310 (1) Was he denied his right to a jury drawn from a fair cross-section of the community?
(2) Were the trial court’s post-submission communications to the jury coercive?
(3) Has the defendant been subjected to double jeopardy?
JURY PANEL COMPOSITION
The initial jury panel consisted of fifty citizens, with nearly an equal number of male and female members. Prior to the trial, twenty-six members of the panel were excused by the presiding judge. At the commencement of defendant’s trial, the panel consisted of seven men and nineteen women. The jury selected to hear the case consisted of three men and nine women, according to the defendant’s brief.
The state argues that the defendant must prove an intentional and purposeful discrimination against an identifiable community group in order to succeed in his challenge of the jury array. In support of its position, the state relies upon this court’s decision in
State v. Plenty Horse,
1971,
However, since
Plenty Horse,
the United States Supreme Court has decided
Peters v. Kiff,
1972,
“It is the policy of the state of South Dakota that all litigants in the courts of this state entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross-section of the community in the municipality, district or county where the court convenes. * * * ” SDCL 16-13-10.1.
It is apparent that the burden is now upon the judiciary, not only to prevent purposeful discrimination against minorities but to insure that all idеntifiable groups in the community are fairly represented on jury panels. In Taylor, the fair cross-section requirement was held violated where women, who composed fifty-three percent of the community, made up only ten percent of the jury wheel and were nоt represented on the jury venire.
It is not important whether the underrep-resentation is purposeful or not, nor whether it arose from the selection of the jury panel or after through the granting of statutory exemptions or excuses. In
United States v. Armsbury,
1976, D.C.Or.,
“Even if these excuses (for extreme inconvenience and undue hardship) do result in the underrepresentation of certain cognizable groups, the statutory authority to grant them is not unconstitutional. Whether exemptions based оn excuse are constitutional or not will depend on each excuse. If the excuse reflects a rational accommodation between the community’s need for jurors and its need for uninterrupted professional or other important services, then it is constitutional.
* * * * * *
“(However), if a substantial threat is posed to the representative nature of the jury pool because of constitutionally granted excuses, then supplemental names must be added to correct any gross imbalance.”408 F.Supp. at 1135 . (emphasis added)
Although the United States Supreme Court has not indicated what percentage of underrepresentation on a single panel would constitute a violation of the fair cross-section requirement, it appears
*311
that an absolute percentage difference of fifteen percent or more would require supplementation of the jury panel. See
United States v. Test,
1976, 10 Cir.,
The defendant concludes that a jury panel of seven men and nineteen women (a 27% composition of males) violates the fair cross-section requirement. To do so, he assumes, without proof, that men comprise fifty percent of the population of Stanley County. The underrepresentation would be an absolute percentage difference of twenty-three percent (i. e., 50%-27% = 23%). If those were the final figures, we аssume that the panel would not contain a fair representation of men and would require supplementation.
However, after the defendant made his objection to the jury panel composition, a second panel was called. When or for what purpose it was called does not appear in the settled record. The composition of the second panel does not appear in the settled record, nor was any further challenge of the jury panels made after it was called. The record was settled without a transcript of the voir dire proceedings or the clerk’s juror records. As has been stated before; the settled record is the sole evidence of the trial court’s proceedings,
Boettcher v. Thompson,
The defendant’s failure to include in the settled record the entire voir dire proceedings leaves this court in a position of sрeculating as to the composition of the two combined jury panels. The defendant would have us presume that because the petit jury selected to try this case was composed of three men and nine women, the second jury panel suffered from the same underrepresentation of men. It was stated in Taylor, supra:
“It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the popula tion.”419 U.S. at 538 ,95 S.Ct. at 702 ,42 L.Ed.2d at 702-703 .
We therefore refuse to presume, because the petit jury members were disproportionately women, that the source was not a fair cross-section of the community.
State v. Tucker,
1978,
COMMUNICATIONS WITH JURY
The trial in this case began with the selection of the jury on July 19, 1976. After hearing one witness, the court took an early recess for the day; court did not resume until 9:30 a. m., the following day to allow the jurors sufficient travel time. The matter was submitted to the jury at 6 p. m., on July 20,1976, following the giving of the court’s instructions and closing arguments.
*312 After taking a break for dinner, the jury resumed its deliberations. At 10:30 p. m., the trial judge sent the following communication to the jury:
“Please advise whеther you believe that you will be able to arrive at a verdict in this case, or whether you believe that you are hopelessly deadlocked. Do not reveal how you stand numerically or otherwise in responding to this communication.”
and received the reply from the jury foreman:
“We have taken considerable time reviewing your instructions and have taken two votes but have not reached a decision. We do not feel we are hopelessly deadlocked.”
Just before midnight, the trial judge again sent the same message to the jury and received the reply: “We are making progress and have taken four votes.” At that time, the trial judge advised counsel that if a verdict was not reached by 1 a. m., he would declare a mistrial. At 12:51 a. m., the jury returned a verdict of guilty on the lesser charge of assault and battery. Defendant asserts that thе trial judge’s messages to the jury coerced and pressured the verdict.
This court has previously held that the
“Allen
charge”
2
or “get-together instruction” is not to.be used in criminal trials in this state’s courts.
State v. Ferguson,
1970,
The ABA Standards for Criminal Justice, The Function of the Trial Judge, § 5.2(b) express the prevalent rule that
“[t]he trial judge should require a record to be kept of all communicatiоns received by him from a juror or the jury after the jury has been sworn, and he should not communicate with a juror or the jury on any aspect of the case itself (as distinguished from matters relating to physical comforts and the like), except after notice to all parties and reasonable opportunity for them to be present.”
See also 75 Am.Jur.2d, Trial, § 1001. Defendant here makes no complaint that the trial judge’s communications to the jury were without notice to him or in his absence.
The ABA Standards for Criminal Justice, Trial by Jury, § 5.4(b), (c) suggest:
“(b) If it apрears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberаte for an unreasonable length of time or for unreasonable intervals.
(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.”
The problem presented by these standаrds and case authority is how the trial court is to determine whether the jury has reached an impasse after several hours of deliberation.
The North Dakota, Michigan, Minnesota and Tennessee courts have established guidelines in
State v. Klein,
1972, N.D.,
“If orderly supervision of the docket or conveniénce of the jury, the parties, the lawyers, or сourt personnel requires that the judge be informed as to the prospect of the jury’s reaching a verdict by a certain time, the proper procedure is to recall the jury to the courtroom. There *313 upon, in the presence of defendant and counsel, the judge should direct the jury foreman to poll the jury in private in the jury room and then to return and inform the judge whether a majority does or does not believe a verdict can be reached by a certain time.” State v. Mims,235 N.W.2d at 387 .
“(However), [t]he trial court should admonish the jury at thе very outset not to indicate how they stand as to conviction or acquittal or whether they entertain a predominant view.” State v. Hutchins, 1964,43 N.J. 85 ,202 A.2d 678 .
See also
People v. Luther,
supra,
In each of those cases, communications with the jury in open court was approved. The content of the communications was not held to be coercive even though a definite time was mentioned in the message. Here the communication did not contain any reference to a time and is not in any manner coercive. Since defendant does not object to the form of the communication, but only its substance, we find no error.
DOUBLE JEOPARDY
After the filing of the original misdemeanor complaint for assault and battery, the state’s attorney moved to dismiss the charge and to substitute the felony charge of assault with the intent to do great bodily injury. The form used by the state’s attorney recited that the basis for the dismissal was for “insufficient evidence to sustain a conviction” and to allow the filing of a “substituted” charge.
Defendant’s trial counsel asserted that the trial on the assault with the intent to do great bodily injury constituted double jeoрardy. In his appellate brief, defendant does not cite any authority in support of his double jeopardy claim and we deem it abandoned. Instead, defendant asserts on appeal that the state should be held to have waived the charge of assault and battery. However, the jury instruction on the necessarily included offense of assault and battery was given without any objection by defendant. If there was error, it was waived by defendant’s failure to object to the instruction.
The judgment of conviction is affirmed.
Notes
. This percentage is taken from
Swain v. Alabama,
1965,
.
Allen v. United States,
1896,