(concurring). It is strenuously argued in support of the judgment of conviction that defendant is guilty. All we know or can know is that a jury has so found. On this appeal our function is to determine whether or not that judgment is tainted with legal error.
The principal error assigned for a reversal of the judgment is the contention that the jurors were coerced in the rendition of their verdict. The basis of this claim is fully outlined in the opinion of Presiding Justice Hill and it is unnecessary to repeat what is there said.
It is of paramount importance that every defendant should be accorded a fair trial irrespective of the question of his guilt or innocence. The essential and substantive attributes or elements of a jury trial are, and always have been, number, impartiality and unanimity. The latter element, however, is no longer necessary in a civil action. A verdict should express the deliberate judgment of the jury. The juror as well as the judge has an independent duty to perform and he ought to be left free to pronounce his own conviction. A verdict brought about in any other way cannot be the result of that deliberation which the law requires.
The proceedings which culminated in this verdict are highly reminiscent of the rule of the ancient common law when jurors were kept together as prisoners of the court until they had agreed upon their verdict. It was regarded not only proper, but requisite, that they should be coerced to an agreement upon a verdict. (People v. Sheldon, 156 N. Y. 268.) In Jones’ Blackstone’s Commentaries (Book III, pp. 1985,1986) it is said: “ The jury, after the proofs are summed up, unless the case be very clear, withdraw from the bar to consider of their verdict, and, in order to avoid *663intemperance and causeless delay, are to be kept without meat, drink, fire or candle, -unless by permission of the judge, till they are -unanimously agreed * * * and it has been held that if the jurors do not agree in their verdict before the judges are about to leave the town, * * * the judges are not bound to wait for them, but may carry them around the circuit from town to town in a cart,”
The old rule of the common law permitting coercion of a jury in order to secure a verdict has been swept away and under our present method the independence of a jury is respected. A verdict cannot now stand where the jury has been subjected to any statements or directions naturally operating to coerce or threaten them to reach an agreement, whether the coercive acts or statements originate with the judge, or are traceable to the bailiff, or other officers of the court or to the party to the action, or to the spectators or strangers at the trial. (16 E. C. L. p. 297.)
It has been held again and again improper for the trial court to make statements to the jury which reflect on their honesty, integrity or intelligence as jurors. (People v. Sheldon, supra; People v. Dixon, 118 App. Div. 593; appeal dismissed, 190 N. Y. 540; People v. Mayer, 132 App. Div. 646; Twiss v. Lehigh Valley R. R. Co., 61 id. 286; 64 C. J. 1049.)
No juror should be influenced to a verdict by fear of personal criticism, possible disgrace or pecuniary injury. No juror should be induced to assent to a verdict by a fear that a failure to agree would be regarded by the public as reflecting on either his intelligence or his integrity or as a failure to properly perform a public duty. Personal consideration should never be permitted to influence a juror’s conclusion. (Sharp v. State, 115 Neb. 737; 214 N. W. 643; State v. Bybee, 17 Kan. 462.)
In this case it is apparent that eleven of the jurors were in favor of a guilty verdict. Practically all the members of the jury repeatedly advised the court that an agreement was impossible. Despite that information the trial court directed them to reconsider the evidence. In the colloquy between the court and the jurors the dissenting juror was charged by her associates with being insane, that she was sick, that she needed medical attention and that being a woman her mind could not be changed. That this juror was ridiculed and criticized publicly in the presence of her associates and the presiding judge is obvious.
The susceptibility of jurors to the influence of the presiding judge should prompt the latter to emphasize the thought in his charge and in his comments in language that cannot be misunderstood that no juror should surrender his conscientious convictions for the purpose of reaching a verdict. I have no word of condem*664nation of the spoken word of the judge in this case. My criticism is based on the fact that the dissenting juror was publicly ridiculed and criticized and her mentality questioned without any word of admonition or rebuke from the lips of the presiding judge. In fact one of the jurors suggested to the judge that when the case was over he would like an opportunity to talk to him and the district attorney about the condition of the juror in question. Who can doubt that all this operated as a threat on the mind of this juror? It is entirely probable that she finally surrendered her convictions in order to reach an agreement and to escape the humiliation of further proceedings. It would have required great fortitude on the part of any juror to withstand further criticism for persistence in his view.
In defense of this it is said that jurors frequently quarrel among themselves over the determination of questions of fact. Except in very rare instances there is no proof before the court as to what transpires in the jury room. Here we have definite evidence in open court of the coercive measures adopted to force this juror to acquiesce in the view of the majority. It is too great a strain upon our credulity to say that she was not coerced.
The Supreme Court of Florida (City of Miami v. Bopp, 117 Fla. 532; 158 So. 89) approved an order setting aside a verdict where the foreman of the jury threatened one of his associates. In that case the court held that in setting aside a verdict and granting a new trial it might properly consider an affidavit of a juror to the effect that he was of the opinion that the opposite verdict should have been rendered but consented to the returning of the verdict because of threats of the foreman of the jury that otherwise he would report to the judge the fact that the juror had read a newspaper account of the case and that this would cause trouble to the juror. In its opinion in that case the court said:
“It is true, as a general rule, on the ground of public policy that the affidavit, deposition or statement of a juror will not be received to impeach his own verdict, but this Court has heretofore recognized exceptions to that rule and especially that exception which is generally recognized by the courts of this country.
“ In Linsley v. State (88 Fla. 135; 101 So. 273) we said:
“ ‘ It is upon grounds of public policy that the rule is observed that the affidavit, deposition or statement of a juror will not be received to impeach his own verdict; but this rule relates to matters resting in the personal consciousness of the juror, as said by Mr. Justice Brewer in Perry v. Bailey (12 Kan. 539). When a juror is heard to impeach his own verdict because of some matter resting in his own consciousness the power is given to him to nullify the expressed conclusions under oath of himself and eleven others. *665The general rule is that affidavits of jurors are admissible to explain and uphold their verdict, but not to impeach and overthrow it. But this general rule is subject to this qualification, that affidavits of jurors may be received, for the purpose of avoiding a verdict, to show any matter occurring during the trial, or in the jury room, which does not essentially inhere in the verdict itself See Perry v. Bailey (supra).
“ The rule is general, with but few exceptions if any that the testimony of jurors will not be received to impeach their verdict. (See Bartlett v. Patton, 33 W. Va. 71; 10 S. E. 21; 5 L. R. A. 523, and note; 27 R. C. L. 896.)
“ The rule announced in the Kansas case seems to us to be a salutary one and more consistent with reason and sound policy. That rule, as announced by Mr. Justice Brewer, is that all those matters lying outside the personal consciousness of the individual juror, those things which are matters of sight and hearing, and therefore accessible to the testimony of others and subject to contradiction, the interests of justice will be promoted and no sound public policy disturbed if the secrecy of the jury box is not permitted to be the safe cover for the perpetration of wrongs upon parties litigant. If the jury has been guilty of no misconduct, no harm has been done by permitting their testimony to be received. If the jury has been guilty of misconduct but such misconduct was not of such a nature as to prejudice the rights of the parties, the verdict should stand, but the offending juror should be punished. But' if such misconduct has wrought prejudice not only should the juror be punished but the verdict should also be set aside; but matters resting in the personal consciousness of one juror should not be received to overthrow the verdict, because being personal it is not accessible to other testimony.”
In the case before us the threats were not made in the privacy of the jury room but in open court. We are not dependent upon proof by affidavit as to what occurred. We have before us the official record.
For these reasons the judgment of conviction should be reversed and a new trial granted.