The defendant was convicted of violating the Georgia Controlled Substances Act. He appeals the denial of his motion for new trial.
After deliberating approximately two hours, the jury returned to the courtroom, and the foreman told the judge that the jury was unable to reach a verdict. The judge inquired as to their numerical division, and the foreman replied that they stood 11:1. The judge ordered a luncheon recess and instructed the jury to resume its deliberations at 2 p.m. Defense counsel then asked the court’s per-, mission to present a motion before the jury resumed its afternoon deliberations. Although it is not absolutely clear from the record, the judge apparently consented to his request.
The jury returned to the jury room at 2 p.m., but the judge did not return to the courtroom until 2:40 p.m. Defense attorney claims that the bailiff instructed the jury that it could not resume deliberations until he received further orders from the judge, which orders were received and communicated to the jury around 2:40 p.m. Upon being questioned by the judge, the bailiff stated that he did not instruct the jury to delay its deliberations; rather, he said he had informed the jury that he could not give them a copy of the indictment until receiving further instructions from the judge. The judge then proceeded to hear defense attorney’s motion that the jury be given additional instructions pertaining to its deadlock. As the motion was being discussed, the jury returned with its verdict. The defendant alleges that the verdict was invalid since it was reached without benefit of the additional *794 instructions which he had requested.
Defense counsel’s motion asked that the court question the foreman to "find out whether he does, indeed, feel that they have reached a dead end.” In response to this motion, the district attorney volunteered to go get his copy of the "Allen” or "dynamite” charge. See Allen v. United States,
The decision of whether to give a jury\in disagreement the "Allen” charge is generally left in the discretion of the trial judge. See
Parker v. Ga. Pacific R. Co.,
In reference to the judge’s discretion the District of Columbia Circuit Court of Appeals has ruled that "[w]hen a jury reports that they are unable to agree the court is faced with the alternative of discharging them or directing them to continue their deliberations... In order to determine the likelihood of an agreement it is obviously necessary in most instances, and proper, for the judge to interrogate the jury.” United States v. Smoot, 463 F2d 1221, 1223 (D.C. Cir. 1972). In United States v. See, supra, *795 the Ninth Circuit Court of Appeals upheld the trial judge’s declaration of a mistrial. It ruled that upon being informed of deadlock, the trial judge should consider four factors in making his decision of whether to order a mistrial or to require the jury to deliberate further. These factors include:
1. Polling the jurors or questioning them as a group as to whether additional time for deliberation would be helpful in overcoming their current deadlock.
2. Considering whether the jury is so exhausted that the minority might be induced to vote for a verdict which they otherwise would not support.
3. Considering the length of the trial and the complexity of the issues in the case.
4. Consideration of the length of time the jury deliberated before declaring itself deadlocked.
We approve of the approach outlined in United States v. See, supra. We also believe that it would have been better practice for the trial judge in this case to have inquired further into the nature of the jury’s deadlock and to have given the jury additional instructions if, in the exercise of his discretion, he then believed such instructions were appropriate. However, on the basis of this court’s decision in
Goldwire v. State,
Judgment affirmed.