Shea v. United States

• Decision Date: 06 October 1919
• Docket Number: 3311.
• Parties: SHEA v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

260 F. 807

SHEA v. UNITED STATES.

No. 3311.

United States Court of Appeals, Ninth Circuit.

October 6, 1919

O. P Hubbard, of Valdez, Alaska, and John F. Dore, of Seattle Wash., for plaintiff in error.

William A. Munly, U.S. Atty., of Valdez, Alaska.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The plaintiff in error was charged with the murder of Rance W Book on November 14, 1917, at Cordova, Alaska. Some ten days prior to the homicide Book had married a woman who was the divorced wife of the plaintiff in error. She had gone to Seattle in October of that year and had met the plaintiff in error and agreed to resume the former relation. She returned to Cordova, intending, as she said, to sell her property and thereafter rejoin the plaintiff in error at Seattle. About three weeks later the plaintiff in error followed her to Cordova, and on the day on which he arrived he shot and killed the man whom she had married. The plaintiff in error was adjudged guilty of murder in the second degree. To reverse that judgment he brings this writ of error.

Error is assigned to the following instructions given to the jury after they had deliberated for a time upon their verdict and were brought into court upon the court's order:

'You have now been out about 30 hours on this case, and while I have no doubt that any differences between you are honest and sincere, I want to call your attention to the fact that in no case can absolute certainty be expected. * * * If a large number or majority are of a certain opinion, the juror dissenting should carefully consider whether his doubt or difference from such opinion is a reasonable one, which makes no impression upon the minds of so many men equally honest and equally intelligent as himself. Upon the question of the expense in the trial of this case, I deem it proper to call your attention to the fact that this case has involved a very great expense upon the government. A large number of witnesses have been called from their homes and business important to themselves already for a considerable time; that they reside at Cordova, and a steamer is expected to pass through Valdez en route to Cordova within the next 12 hours, and there will probably not be another steamer for a week or more; also, in connection with the matter of expense, I call your attention to the difficulty of getting qualified jurors in a case of this kind, in so small a community, after so many have been disqualified, having already been called and excused on this case. We all desire to see justice administered, honestly and fairly. At the same time, justice to both the government and defendant requires that it be not attended with too great outlay or expense. The defendant has already been in custody over six months, and is entitled to have the case speedily determined. I call these facts to your attention as matters for your careful and honest consideration; but I wish to impress upon you that nothing that I have said should be understood as seeking to influence the conscientious and honest opinion which you or any one of you, as reasonable men, may entertain. If you have a reasonable doubt of the defendant's guilt, as the same is defined to you in the instructions already given, you should acquit the defendant; if you have not, you should convict him, and the degree of the crime is a matter which should not cause you to entirely disagree and fail to reach a proper verdict.'

We are not convinced that the court in so instructing the jury committed reversible error. In 16 C.J. 1091, it is said:

'It is proper for the court, after the jury have deliberated for some time, to recall them to ascertain why they cannot agree, and to inquire as to whether there is any likelihood of an agreement. Providing nothing is said to coerce an agreement, or to indicate what verdict should be rendered, or that may be considered as an appeal to the jury to decide the case in some way even at the expense of honest convictions, the court may give the jury further instructions or advice calculated to assist them in coming to an agreement, may call their attention to the time taken in the trial and the great expense incurred therein, or which would be incurred by a retrial, may impress upon them the importance of the case, and urge them strongly to come to some agreement.'

We do not think that the instruction here in question was more coercive or more invasive of the province of the jury than the instruction to the jury in United States v. Allis (C.C.) 73 F. 182, which was approved in Allis v. United States, 155 U.S. 117, 15 Sup.Ct. 36, 39 L.Ed. 91, where the court said:

'It is a familiar practice to recall a jury after they have been in deliberation for any length of time for the purpose of ascertaining what difficulties they have in the consideration of the case, and of making proper efforts to assist them in the solution of those difficulties. It would be startling to have such action held to be error, and error sufficient to reverse a judgment.'

Again in Allen v. United States, 164 U.S. 492, 17 Sup.Ct 154, 41 L.Ed. 528, the court approved an instruction of the court in which the jury were told it was their duty to decide the case if they could conscientiously do so, and...