People v. Carder

BURNETT, J.

Defendant was convicted of the larceny of a calf, and he appeals from the judgment and order denying his motion for a new trial.

Among the alleged errors, the most serious is involved in certain remarks to the jury made by the trial judge. It seems that after the case was submitted the jury returned into court at 3:35 P. M. on Friday, and asked to have certain

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evidence read to them. This was done and they again retired. A few hours later they returned to the courtroom and the foreman informed the presiding judge that in his opinion the jury could not agree. The trial judge then said: “Ton must work this out, gentlemen, if there is anything I can help you in I can do it, and I will be here ten minutes longer to help you. You oughtn’t to make up your mind you are not going to agree on this kind of a case, simply calls for the sensible reasoning of men according to the evidence and talk it over together.” Furthermore, in reply to a juror’s question, the' court said: “I don’t want to decide any question of fact for you;

that question though it seems very plain to me.”

A little later he used this language: “You must try and reconcile the testimony if you can and come to a verdict, gentlemen, if you possibly can. These cases are expensive to try.”

The jury returned again into court on Saturday morning at 10:35, and the transcript reveals the following: “Clerk: Have you reached a verdict, gentlemen? A. We have not. Court: Well, what can I do for you, gentlemen? Juryman Yates: Your Honor, please, there isn’t a possibility I don’t think in the minds of any of the jury that we can agree. We have went over the evidence and every particle of that; we can agree as to what the evidence is but we can’t agree on a verdict. The Court: You can’t agree, you think? Juryman: No, sir, done everything that we could to reach a verdict since you left here last night. The Court:

How many contrary ones are there?

Juryman: Two. Court: Well, I tell you, gentlemen, you can work just as good on this, a jury can on holidays, Sundays and any other time and the law is all right in that respect and the court can take the verdict at any time, too, on Sunday as well as Saturday afternoon; now, if there is any question of law that you need that you are in doubt about, why I will give it to you. Questions of fact you must decide;