Reith v. Ansley

• Decision Date: 21 March 1932
• Docket Number: 29889
• Citation: 140 So. 521,162 Miss. 886
• Court: Mississippi Supreme Court
• Parties: REITH v. ANSLEY

140 So. 521

162 Miss. 886

REITH v. ANSLEY

No. 29889

Supreme Court of Mississippi

March 21, 1932

Division A

APPEAL AND ERROR.

Instruction that verdict of nine jurors should be verdict of jury held harmless, where it did not appear instruction was acted on (Constitution 1890, section 31, as amended; Code 1930 section 2067).

HON. W A. WHITE, Judge.

APPEAL from circuit court of Hancock county, HON. W. A. WHITE Judge.

Action between Frank Reith, Jr., and James Ansley, minor, etc. From the judgment the former appeals. Affirmed.

Affirmed.

Currie, Stevens & Currie, of Hattiesburg, for appellant.

The court below erred in giving instruction number five (5) to the plaintiff. At the request of the plaintiff the following imperative and mandatory command was given to the jury.

"The court instructs the jury, that when nine (9) of you have agreed upon a verdict, that that verdict shall be the verdict of the jury."

We do not question the constitutionality of the legislative act authorizing juries in the circuit and chancery courts in their discretion to render verdicts when only nine jurors agree, but we most earnestly submit and urge that the instruction quoted above, by the use of the word "shall" instead of the word "may," violated the common law, constitutional and statutory rights of the defendant, and, we submit, the action of the trial court in giving the instruction to and at the request of the plaintiff unquestionably requires a reversal of this cause.

The right of trial by jury shall remain inviolate, but the legislature may, by enactment, provide that in all civil suits tried in the circuit and chancery court, nine or more jurors may agree on the verdict and return it as the verdict of the jury.

Section 31 of the Constitution of the State of Mississippi; Section 2067, Vol. 1, Mississippi Code, 1930, page 1021.

We deem it fundamental and elementary that any innovation upon a constitutional provision, or limitation upon a common-law right, is to be strictly construed. Such limitations and innovations are not favored, but all presumptions are indulged against their enlargement, and they are universally and uniformly viewed with caution and strictly construed.

An institution (the rights of trial by jury, with all the rights and benefits incident thereto), that has so long stood the trying tests of time and experience, that has so long been guarded with scrupulous care, and commanded the admiration of so many of the wise and good, justly demands our jealous scrutiny when innovations are attempted to be made upon it.

William McRae et al. v. Grand Rapids, etc., R. Co., 17 L. R. A. Ex. Ann. 1913, with note citation to 1922, page 752.

Each and every juror has the right, at any time before the verdict is actually rendered, to change his vote.

Any juror may dissent from a verdict to which he has previously agreed at any time before it is recorded, whether the verdict is written or oral or whether the jury is polled or not.

Section 162, Vol. 35 C. J., p. 234.

The instruction under discussion and given by the trial court to and at the request of the plaintiff, arbitrarily and peremptorily charged the jury that "when nine of you have agreed upon a verdict, that verdict shall be the verdict of the jury."

The evil in the instruction under discussion strikes at the very foundation of the right of trial by jury. It stripped the jury of its one and only chance of arriving at and returning a righteous verdict--the right to deliberate at length, to exchange views and opinions, and to reach, if possible, after calm and unmolested consideration, a verdict which reconciled and expressed the views of every man on the jury.

Wellman's Gentlemen of the Jury, page 283-284.

We submit that it would have been far less prejudicial and a much less transgression of the rights, of the defendant, if the trial court had fixed a time limit within which the jury had to return a verdict. Those jurors who were in favor of the defendant would then have had at least...