Upon submission of this cause in this court, it was assigned to Associate Judge RICE, who prepared the foregoing opinion expressive of his views upon the points of decision involved. The majority of RICE, J. We think the exception duly ity of this court do not accord to the opinion reserved to the "additional oral charge of the court," should have been sustained. In this connection the record shows that the following incident occurred: "At 4:05 P. M. August 14, after having been out since the afternoon of August 13, 1928, the jury returned to the court room and the following occurred. The Court inquired: Is the defendant in the court room? Defendant's counsel replied: Yes, sir, right here. The Court then said to the jury: Have you a verdict? The foreman answered: We have not. We have two who won't make a verdict: * * * We have labored this hard to make a verdict; taking something like 50 polls I reckon. The Court then said to the jury: The law is that if there is any large greater number of the jury that have opposed to them a much less number of the jury one way or the other that it may be upon considering it, the less number should consider that if so many more equally honest and equally sensible men as they are should look at it in one light, if the opinion that they have might consider whether that opinion was, whether they should have the same. In other words, if they might not be less right in the matter or less correct than those so larger number that look at it in the other light that would apply either way whether the decided majority is in the case."
This "additional charge" is confusing to us, and we think it must have necessarily confused the jury to whom it was delivered. The trend and purport of the "additional charge" appears to the effect that a minority of the jury should yield to the majority in the conclusion or decision to be reached by them, where differences appear with the jury as to a proper verdict. This is not the law. In the Bufkins Case, cited by RICE, J., as controlling here, it is expressly decided: "But it is not proper to give an instruction censuring jurors for not agreeing with the majority." Bufkins v. State, 20 Ala. App. 457,103 So. 902. The law is that a jury are the sole judges of all controverted facts submitted to them for their determination. Their province in this connection should not be invaded, even by the court, and there should be nothing in the intercourse of the trial judge, with the jury, having the least tendency or appearance of duress or coercion, or that might tend to create the impression that the law requires a minority of the jury to yield to a majority as a controlling factor in arriving at a verdict. Holladay v. State, 20 Ala. App. 76,101 So. 86; Gidley v. State, 19 Ala. App. 113, 95 So. 330.
Reversed and remanded. *Page 273