State v. McKissick, 272--D

• Citation: 150 S.E.2d 767,268 N.C. 411
• Decision Date: 02 November 1966
• Docket Number: No. 272--D,272--D
• Court: North Carolina Supreme Court
• Parties: STATE v. Warren Walter McKISSICK, Jr.

Page 767

150 S.E.2d 767

268 N.C. 411

STATE v. Warren Walter McKISSICK, Jr.

No. 272--D.

Supreme Court of North Carolina.

Nov. 2, 1966.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis, and Trial Atty. Robert G. Webb, for the State.

Charles V. Bell and J. Levonne Chambers, Charlotte, for defendant appellant.

PARKER, Chief Justice.

The State and defendant offered evidence. The judge charged the jury. After the jury had deliberated in their room for several hours, the judge had them brought back into the courtroom and asked them if they had agreed upon a verdict. The jury answered, No. The court then charged them as follows, which defendant assigns as error:

'Well, members of the jury, a Judge cannot discharge a jury lightly. You must consider this case until we have exhausted every possibility of an agreement.

'I presume you realize what a disagreement means. It means that this case will have to be retried at further expense.

'I do not want to force or coerce you into agreement and could not if I wished to do so. But still it is your duty as intelligent men and women to consider the evidence, reason the matter over among yourselves and come to an agreement.

'A mistrial is always a misfortune in any case or to any County.

'Jurors, if they cannot render a verdict, are entirely useless.

'It is the duty of jurors, if possible, to render a verdict and I hope you can retire and consider the matter further, reason with each other as intelligent men and women and come to an agreement. You may retire.'

Defendant contends that the above quoted statement from the charge was coercive and intimidating, and compelled an unwilling jury, or part of them, to surrender their unfettered and unbiased judgment, and reach and return a verdict.

In Wissel v. United States, 2 Cir., 22 F.2d 468, it is said: 'The cases all recognize that the surrender of the defendant judgment of a jury may not be had by command or coercion. * * * A judge may advise, and he may persuade, but he may not command, unduly influence, or coerce.'

In Trantham v. Elk Furniture Co., 194 N.C. 615, 140 S.E. 300, Brogden, J., with his

usual accuracy and clarity, speaking for the Court said: 'It (the verdict of a jury) should represent the concurring judgment, reason, and intelligence of the entire jury, free from outside influence from any source whatever. The trial judges have no right to coerce verdicts, or in any manner, either directly or indirectly, intimidate a jury.'

An instruction in substantially identical words as here was found no ground for a new trial by this Court in State v. Brodie, 190 N.C. 554, 130 S.E. 205, with the exception that in the Brodie case the judge did not instruct the jury, as the judge did in this case, as follows: 'You must consider this case until we have exhausted every possibility of an agreement.'

In State v. Lefevers, 216 N.C. 494, 5 S.E.2d 552, the court instructed the jury as follows:

'That this case took a good little time to try and about a half a day in the argument and the charge of the Court and some jury in this County have to pass on it, and you have been selected and sworn to decide, and it is your duty to decide it because it is an expense to the county to re-try it. And it is your duty to try to come to some agreement. I am not trying to force you to agree on this case and you may go back to the jury room and continue you deliberations. * * * Remember about the expense of this case and the fact that some one has to try it. You are intelligent men and can try it as well as any men in the County.'

In finding no error in this charge, the Court said:

'While his Honor in the case at bar told the jury 'it is your duty to decide it,' he immediately followed this instruction with the words 'it is your duty to Try to come to some agreement,' and 'I am not trying to force you to agree."

In State v. Barnes, 243 N.C. 174, 90 S.E.2d 321, this Court in a Per Curiam opinion found no error in the following charge to a jury which had been out several hours without arriving at a verdict (We have copied the quoted part of the charge from the case on appeal on file in the office of the clerk of this Court.):

'Gentlemen of the Jury, if you may reconcile any differences you may have under the evidence and render a verdict, the court would express the hope that you do so. If this jury fails to render a verdict, it would then become necessary to call upon another jury to pass upon the case. I have no reason to believe that another would have more intelligence or be better qualified than this jury to make the decision. Even so, the court would have the jury bear in mind that each person is the keeper of his own conscience, and the court would not have a juror to do violence to his own conscience in order to render a verdict. You may retire and deliberate further.' (Emphasis ours.)

In State v. Green, 246 N.C. 717, 100 S.E.2d 52, the Court found no error in the following charge to a jury which had been out for some time without arriving at a verdict (We have copied the quoted part of the charge from the case on appeal on file in the office of the clerk of this Court.):

'Gentlemen of the Jury, I dont want any member of the jury to surrender any conscientious opinion that he has about this matter, but you...