United States v. Smith, 9712.

• Decision Date: 02 November 1965
• Docket Number: No. 9712.,9712.
• Citation: 353 F.2d 166
• Parties: UNITED STATES of America, Appellee, v. George Marcus SMITH, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

353 F.2d 166 (1965)

UNITED STATES of America, Appellee, v. George Marcus SMITH, Appellant.

No. 9712.

United States Court of Appeals Fourth Circuit.

Argued October 4, 1965.

Decided November 2, 1965.

Edward C. Roberts, Spartanburg, S. C. (Court-assigned counsel), for appellant.

Albert Q. Taylor, Jr., Asst. U. S. Atty. (John C. Williams, U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and J. SPENCER BELL, Circuit Judges.

HAYNSWORTH, Chief Judge.

In this direct appeal, we think the defendant is entitled to a new trial because the jury was given an unbalanced version of the "Allen" charge.

This Dyer Act case was submitted to the jury at some unspecified hour during the morning. At 12:15 o'clock in the afternoon, the foreman was recalled and asked if he thought the jury would soon reach a verdict. He responded that he thought not, whereupon the court instructed the Marshal to take the jury to lunch. Upon its return from lunch, the following proceedings were had:

The Court: I think I will charge this jury a little further. Is the defendant in Court? (Counsel and defendant were present.) (The jury returned to open Court.)

The Court: Mr. Foreman, have you agreed on a verdict?

The Foreman: We have not, your Honor.

The Court: Well, looking at you gentlemen, it seems to me you are just about as intelligent looking as the average juror, and it seems to me you wouldn\'t have any trouble agreeing together. Some jury has got to decide it one way or the other. While undoubtedly the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the juryroom. The very object of the jury system is to secure unanimity by a comparison of views and by arguments among the jurors themselves. A juror should listen with deference to the arguments and with a distrust of his own judgment if he finds a large majority of the jury taking a different view of the case from what he does himself. A juror should not go to the juryroom with a blind determination that the verdict shall represent his opinion of the case at the moment; or that he should close his ears to the arguments of men who are equally honest and intelligent with himself — and, I might add, to the arguments of women, who are presumed to be as intelligent as men.

I don\'t know, you have got eleven men and one woman on the jury. I don\'t know whether one woman is making a mistrial or not. I don\'t want to know. But, seriously speaking, it is your duty to try to listen. I remember when I was a member of the bar many years ago, I heard a juror say — they sometimes listened at the keyhole, in the old days, long time ago when you could hear the jurors arguing through the keyhole at the old courtroom in Spartanburg — and elsewhere — and you could hear a juror say, "I\'ll stay here until hell freezes over before I will agree to anything except this."

That kind of juror has got no business being in the jurybox. I don\'t know how you stand on it, but one man is not smarter than any other people in the world. One woman is not smarter than any other people in the world, that I know of. In fact, old Solomon was supposed to be the wisest man that ever lived, but I think that probably we have had some just about as wise as he was since then.

But, seriously speaking about it, it is your duty to go in there and try to find a verdict, not try to make a mistrial. * * *

This case here is a

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