November 10, 1916. The opinion of the Court was delivered by
The defendant was convicted of manslaughter and sentenced to five years imprisonment. He appealed upon four exceptions, the first and second of which will be reported.
First Exception. The case of State v. Long,93 S.C. 502" court="S.C." date_filed="1913-02-08" href="https://app.midpage.ai/document/state-v-long-3886284?utm_source=webapp" opinion_id="3886284">93 S.C. 502, 77 S.E. 61" court="S.C." date_filed="1913-02-08" href="https://app.midpage.ai/document/state-v-long-3886284?utm_source=webapp" opinion_id="3886284">77 S.E. 61, shows that this exception cannot be sustained.
Second Exception. In Phoenix Insurance Co. v. Moog,81 Ala. 335" court="Ala." date_filed="1886-12-15" href="https://app.midpage.ai/document/phœnix-insurance-v-moog-6512670?utm_source=webapp" opinion_id="6512670">81 Ala. 335, 1 So. 108, Mr. Chief Justice Stone, who delivered the opinion of the Court, thus quoted with approval fromGreen v. Telfair, 11 How. Pr. 260" court="N.Y. Sup. Ct." date_filed="1853-11-15" href="https://app.midpage.ai/document/green-v-telfair-5468526?utm_source=webapp" opinion_id="5468526">11 How. Prac. 260: "The Judge may * * * keep the jury together as long as, in his judgment, there is any reasonable prospect of their being able to agree, but beyond this I do not think he is at liberty to go. An attempt to influence the jury by referring to the time they are to be kept together, or the inconvenience to which they are to be subjected, in case they shall be so pertinacious as to adhere to their individual opinions, and thus continue to disagree, cannot be justified. 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 be kept together. There should be nothing in his intercourse with the jury having the least appearance of duress or coercion."
The foregoing is a correct statement of the rule, and, therefore, there was error on the part of his Honor, the Circuit Judge. Unless, however, the error was prejudicial, the judgment will not be reversed. It appears from the record that the case was submitted to the jury at 5 o'clock, and that they were in the jury room until
about 11 o'clock a. m. next day, when the verdict was rendered.
Testimony of the jurors as to whether the charge of his Honor, the Circuit Judge, had the effect of coercing them into finding a verdict would not have been proper. State v.Kelley, 45 S.C. 659" court="S.C." date_filed="1896-03-06" href="https://app.midpage.ai/document/state-v-kelley-6678709?utm_source=webapp" opinion_id="6678709">45 S.C. 659, 24 S.E. 45" court="S.C." date_filed="1896-03-06" href="https://app.midpage.ai/document/state-v-kelley-6678709?utm_source=webapp" opinion_id="6678709">24 S.E. 45. If the jury did not render a verdict, until the expiration of a reasonable time, then such fact is susceptible of the inference that the charge was prejudicial to the rights of the defendant. The long consideration of the jury, in the light of what the Judge had said to them, leads us to the conclusion that his remarks most probably operated in the end to coerce them to agree upon a verdict. Therefore this exception must be sustained.
The appellant's attorneys did not argue the third and fourth exceptions, and, therefore, they will not be considered.
It is the judgment of this Court that the judgment of the Circuit Court be reversed, and the case remanded for a new trial.
MR. JUSTICE GAGE concurs in the opinion announced by the CHIEF JUSTICE.
I agree with the Chief Justice that the charge was calculated to coerce the jury, and, therefore, there should be a new trial. I think, however, that the time spent in the jury room is immaterial. If the jury believed that an agreement was necessary, then I think it was the part of wisdom to agree at once.
We have a statute in this State that provides that if the jury return a second time without having agreed upon a verdict, they cannot be sent out again without their consent. I do not think the power of the trial Judge is plenary.