Cook v. United States, 16898.
Decision Date | 30 April 1958 |
Docket Number | No. 16898.,16898. |
Parties | Richard T. COOK, Jr. and Vernon C. Hill, Appellants, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Julian Hartridge, Savannah, Ga., for appellants.
Donald H. Fraser, Asst. U. S. Atty., Savannah, Ga., William C. Calhoun, U. S. Atty., Augusta, Ga., for appellee.
Before RIVES, BROWN and WISDOM, Circuit Judges.
On oral argument for the first time, appellants urged that it was error per se for the trial court to elicit information from the jury as to its numerical standing. In the district court the two appellants were tried and convicted of rape in violation of 18 U.S.C. § 2031. The jury had retired at 12:10 P.M. on Wednesday, May 15, 1957. At 2:40 P.M. they returned to inquire whether they could bring in a verdict with a recommendation of mercy. At 5:10 P.M. they again returned to ask whether, if they made a recommendation, they could suggest a length of imprisonment. At 5:40 P.M. (still the same afternoon) the foreman reported that the jurors believed that they were hopelessly deadlocked. At 10:00 A.M. the next morning, they returned to the courtroom and what occurred is set forth in the margin.1
The objection to the charge did not particularize the asking of the questions regarding the numerical standing of the jury. It is well settled, however, that an appellate court may notice plain errors of its own motion. Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S.C.A. The mere asking of the question requiring an answer as to the standing of the jury, even though no inquiry is made nor answer given as to whether the majority is for acquittal or conviction, is error per se.2 In this case that error was aggravated by the suggestion that the jury might be held together through Thursday, Friday, Saturday and Sunday. In our system of criminal jurisprudence the duties and responsibilities assigned to the jury are as necessary and important as are those assigned to the judge. Within its prerogative, the jury must remain as free from any possible influence or coercion, even though unintended, as the trial judge would require that he himself be when sitting as a trier of fact. Other questions urged by appellant need not be decided.
Reversed and remanded.
2 This question was settled in Brasfield v. United States, 1926, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345. It was first noticed by the Supreme Court in Burton v. United States, 1904, 196 U.S. 283, 307, 25 S.Ct. 243, 249, 49 L.Ed. 482. In that case, in which Senator Joseph R. Burton of Kansas was being tried on a criminal charge, the jury retired on Saturday evening at 8 o'clock and had not reached agreement by 10 o'clock the following Monday morning. The jury was returned to the court to receive further instructions, and during the proceedings the court stated:
That particular exchange was not excepted to. On appeal the case was reversed for failure of the court to give certain charges requested by the defense.
After deciding that the case should be reversed, the court continued its...
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