272 U.S. 448 (1926), 243, Brasfield v. United States

Docket Nº:No. 243
Citation:272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345
Party Name:Brasfield v. United States
Case Date:November 22, 1926
Court:United States Supreme Court

Page 448

272 U.S. 448 (1926)

47 S.Ct. 135, 71 L.Ed. 345



United States

No. 243

United States Supreme Court

Nov. 22, 1926

Argued October 21, 1926




1. An inquiry, put by the trial judge to a jury unable to agree, asking the extent of its division numerically is per se ground for reversal. P. 449.

2. Failure of counsel to particularize an exception to such an inquiry does not preclude this Court from correcting the error. P. 450.

8 F.2d 472 reversed.

Certiorari (269 U.S. 550) to a judgment of the circuit court of appeals affirming a conviction in a prosecution for conspiracy.

Page 449

STONE, J., lead opinion

MR. JUSTICE STONE delivered the opinion of the Court.

Petitioners were convicted in the District Court for Northern California of the offense (§ 37 of the Criminal Code) of conspiracy to possess and transport intoxicating liquors in violation of the National Prohibition Act. The conviction was affirmed by the Circuit Court of Appeals for the Ninth Circuit. 8 F.2d 472. This Court granted certiorari. 269 U.S. 550; Judicial Code, § 240(a) as amended.

The only errors assigned which are pressed upon us concern proceedings had upon the recall of the jury after its retirement. The jury having failed to agree after some hours of deliberation, the trial judge inquired how it was divided numerically, and was informed by the foreman that it stood nine to three, without indicating which number favored a conviction.

In Burton v. United States, 196 U.S. 283, 307, where a conviction was reversed on other grounds, this Court condemned the practice of inquiring of a jury, unable to agree, the extent of its numerical division, although a response indicating the vote in favor of or against conviction was neither sought nor obtained. This Court then said (p. 308): " . . . we do not think that the proper administration of the law requires such knowledge or permits such a question on the part of the presiding judge."

There is a diversity of view in the circuit courts of appeals whether noncompliance with the rule as stated in the Burton case is reversible error, or whether the expressions in that opinion are hortatory only. See St. Louis & S. F. R. Co. v. Bishard, 147 F. 496; Stewart v. United States, 300 F. 769, 782 et seq.; Nigro...

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