138 N.W. 14 | S.D. | 1912
This is an appeal from a judgment and an order refusing a new -trial. It appears that the jury were instructed and retired in the afternoon and the next morning returned into court and asked for instructions regarding the punishment in cases of the character of that on trial. The court prcir-ceeded to instruct the jury upon the question of punishment and then instructed them further, as-follows: “It is the duty of jurors to return a verdict. The court does not intimate to you in the slightest degree -what your verdict shall be. I have submitted four verdicts to you — one of assault with intent to kill; one of assault with intent to do bodily harm; one of assault and battery, and one of not guilty. It will be your duty to return one of those verdicts. I do not say what kind of verdict; that is for you. This thing of jurors sitting in a case and going out and can’t agree is not right. Every man has a right to his opinion, but he has the right to consider that he might be mistaken one way or the other, and I expect verdicts in this court, and I have been in the habit of getting verdicts. All I expect is a verdict.” This instruction was excepted to, “for the reason that the same amounted to coercion and amounted to telling the jury, or those who -had not agreed upon a verdict, that it was their duty to unite with the majority of the members of the jury in returning a verdict, and amounted to a coercion of the jury upon the part of the court.” It is owing, to the giving of this instruction that appellant seeks a reversal of the judgment and order.
The judgment and order appealed from are sustained.