I dissent for it is my view that the giving of the challenged instruction (set forth haec verba in the majority opinion) under the attendant circumstances constituted prejudicial error entitling the defendant to a reversal of the judgment of conviction.
Appellate courts in the nation have sharply divided as to the propriety of giving instructions similar to the one in question. 53 Am.Jur., Trial, Sec. 956. Inasmuch, however, as it is a matter of first impression in this jurisdiction I strongly feel that the court, at this crossroad, has taken the wrong path, and that the approval of its use now and in the future is a step backward rather than forward in the fair and impartial administration of justice. It is for this reason, and this reason alone, that I dissent.
The principal citations relied upon in the majority opinion for countenancing the use of this instruction are federal cases and those from the State of Colorado. It must be remembered that federal courts have more freedom and latitude in handling juries than do most state courts; e.g., by statute federal judges are permitted to comment upon the evidence, whereas art. 6, § 12, Constitution of Arizona, expressly forbids trial judges in Arizona from so doing. The writer's impression gained from a reading of the Colorado cases is that the Supreme Court of that state feels bound by precedent to sustain its use though they frankly concede that it is commonly referred to in their jurisdiction as "the third degree instruction." Furthermore the soundness of giving this type of instruction has repeatedly arisen in that jurisdiction. Like Banquo's ghost it will not remain at rest. See Olguin v. People, 115 Colo. 147, 170 P.2d 285, and cases therein cited. It is also interesting to note that even the Colorado court has held that the giving of such instruction has its limits. I quote from the case of Peterson v. Rawalt, 95 Colo. 368, 36 P.2d 465, 467:
"Ordinarily a trial judge is within his rightful province when he urges agreement upon a jury at loggerheads with itself; but this process has its limits. Where, as in the present case, the jurors are evenly divided, three and three, it is a specially delicate matter to importune unanimity when there is noindication of confusion or misapprehension in the minds of thejurors on the law of the case." (Emphasis supplied.)
Apparently there was no confusion existing in the minds of the jurors as to the law of the instant case as during their fifty-two hours of deliberation there had been no request to the court for further enlightenment thereon.
Most courts countenancing the giving of this instruction (now sanctioned by the *Page 156 majority of this court) tolerate it rather than commend it, and many admit it would be better for the court, under most circumstances, to omit it. State v. Moon, 20 Idaho 202,117 P. 757, Ann.Cas. 1913A, 724. In the interest of brevity, as it would serve no useful purpose, I shall refrain from collating and analyzing the many decisions from courts disapproving its use, being content to rest my dissenting views principally upon the sound logic of the Supreme Court of Iowa in State v. Peirce,178 Iowa 417, 159 N.W. 1050, 1054:
"* * * there is no decision that such an instruction should never be given, and no more is held than that it depends upon the conditions under which its language is used whether there is reversible error. * * *
"We have intimated strongly that such instructions are erroneous if: (1) Their language indicates an intention to coerce into agreement; or (2) suggests the jury would be kept together until it agreed. (Citing cases.) The ultimate test would seem to be whether the additional instruction forced or helped to force an agreement, or whether it merely started a new train of real deliberation which ended the disagreement. * * *
* * * * * *
"The Clemens Case [(Clemens v. Chicago, R.I. P.R. Co.),163 Iowa 499, 144 N.W. 354] emphasizes that the physical discomfort of long confinement to men accustomed to outdoor living creates a dangerous atmosphere in which to receive an instruction urging the yielding of the minority and the desirability of verdicts, and that, where this is done, it `leads the mind to the more reasonable suspicion that they ceased further resistance, gave up their own convictions, and surrendered to the majority than that they proceeded thereafter to the laborious and uncertain task of convincing themselves that they were wrong,' and that `such instructions have been sustained largely upon the ground that, under the peculiar circumstances of each case, no prejudice could be presumed to have arisen to the complaining party,' and the tendency of it is to be a `tentative suggestion of longer confinement in the event they failed to agree.'
"The only practical general rule that may be worked out from all this is that, where the disagreement is of more than ordinary and usual duration, and after the giving of such an instruction as this a verdict is reached in a time short in comparison with the duration of the disagreement, a presumption arises that the instruction was prejudicial; * * *."
The jurors in the instant case, which had taken but three days to try, were at loggerheads; the judge knew that fact and was determined to break the deadlock. With the scales thus delicately balanced the court upon its own motion gave the instruction in question which certainly accomplished the purpose intended, for within fifteen minutes thereafter they announced agreement. To my mind that constituted *Page 157 coercion and was an abuse of discretion which can not be explained away by any high sounding words as to the fairness or innocuousness of the instruction. The old adage that "proof of the pudding is in the eating" applies.
I agree with defense counsel that after hearing this instruction each minority juror no doubt reasoned thusly to himself:
"The majority think he is guilty; the Court thinks I ought to agree with the majority so the Court must think he is guilty. While the Court did tell me not to surrender my conscientious convictions, he told me to doubt seriously the correctness of my own judgment. The Court was talking directly to me, since I am the one who is keeping everyone from going home. So I will just have to change my vote."
The time element alone negatives any contention that the instruction "started a new train of real deliberation which ended the disagreement." The authorities hold the fact of a speedy agreement after a prolonged previous disagreement gives rise to an inference that the instruction had a coercive effect. Middle States Utilities Co. v. Incorporated Telephone Co., 222 Iowa 1275, 271 N.W. 180, 109 A.L.R. 66; McCarthy v. Odell,202 A.D. 784, 195 N.Y.S. 80.
An examination of reported decisions where the giving of instructions similar to that given in the instant case was under consideration and held to be not coercive almost invariably discloses a comment by the appellate court to the effect that the evidence of the defendant's guilt was so overwhelming as to leave little room for reasonable doubt. See Boehm v. United States, 8 Cir., 123 F.2d 791, 812. Such certainly was not the situation in the case at bar as the great preponderance of medical and documentary evidence tended to establish defendant's plea of insanity. There was a conflict in the evidence in that the two doctors who assisted in making the preliminary examination, at the trial proper adhered to their previous conclusion that the defendant was sane, while opposed to this we have evidence of the inherited insanity tendency, the documentary proof of prior commitments in California, and the testimony of the following noted psychiatrists — Drs. Lindsay E. Beaton, Charles N. Sarlin, and Phillip S. Greenbaum, staff neuro-psychiatrist of the United States Veterans Hospital at Tucson, who testified that, in their opinion, defendant was suffering from schizophrenia (dementia praecox) with paranoid trend, and that at the time of the assaults he was also subject to psychomotor epilepsy.
Under this state of the record I do not believe that it can be reasonably maintained that the court was justified in giving this supplemental instruction for the reason stated in the majority opinion, "* * * If it fathomed the consciences of injudicious jurors, it served its purpose. * * *" As I view the situation, the court was not dealing with a minority composed of "injudicious," perverse or stubborn jurors. *Page 158 Apparently the majority of the court also share in part this view, else they would not have concluded their opinion with this significant statement:
"Upon the whole record before us it does not appear that the (trial) court would have been subject to criticism if it had, prior to the conclusion of the trial, reconsidered its order putting the defendant to trial made at the end of the preliminary investigation as to defendant's insanity."
It is my candid opinion that the state has no occasion to feel proud of this conviction. Unquestionably the defendant is a menace to society and for society's protection he should be permanently restrained of his liberty. However, the route pursued in obtaining this desired objective offends my sense of justice. I surmise that in the past, with trumped-up insanity defenses, the officers had heard the cry of "wolf, wolf" so often that they failed to recognize the real thing when it came along.
It cannot be stressed too strongly that in determining whether a jury has been coerced into returning a verdict all of the attendant circumstances must be considered as well as the particular language used in the instruction complained of. See People v. Pizzino, 313 Mich. 97, 20 N.W.2d 824. In the instant case the following are some of the factors that must needs be considered in weighing the effect upon the jury of the court's giving of this additional instruction: the unprovoked and decidedly vicious attack by defendant upon a prominent young man and his wife; the wide publicity given the matter which naturally tended to stir the emotions of the citizenry resulting in the explosive situation with which the court was dealing; defendant's failure to deny the commission of the physical acts constituting the attacks; his resort to the sole defense of insanity to show lack of criminal intent — this being a plea too frequently resorted to by those having no real defense; the lateness of the hour when the instruction was given and the strong probability that if they did not immediately agree upon a verdict they would be required to spend a third night confined to their quarters.
There is very respectable authority for the proposition that the language of a trial court in charging a jury as to the effort to be made to agree upon a verdict, which might be innocent if uttered before submission of a case to a jury, can well be regarded as harmful if applied to a specific disagreement. Nick v. United States, 8 Cir., 122 F.2d 660, 138 A.L.R. 791.
While I recognize that a trial court has wide discretionary power in the handling of juries, yet there should be nothing in the intercourse of the trial judge with the jury having the least appearance of duress or coercion. Meadows v. State, 182 Ala. 51,62 So. 737, Ann.Cas. 1915D, 663, 664. In my opinion the giving of the instruction complained of unfairly tipped the scales of justice against this defendant as it had a highly coercive effect upon the jury. Furthermore *Page 159 I am convinced that if this instruction under similar circumstances comes into general use in the trial courts of this state it will more frequently than not result in miscarriages of justice.
The courts are ever alert to curb "third degree" methods by peace officers against those accused of crime, hence it becomes all the more necessary that the trial court itself refrain from any act, such as the giving of last minute "advice" that in Colorado at least has earned the sobriquet of "third degree instruction." The Supreme Court of Michigan in speaking of acts of jury coercion made this sage statement: "Every attempt to drive men into an agreement which they would not have reached freely is a perversion of justice." Pierce v. Pierce, 38 Mich. 412.