dissenting. I can not concur with my associates. To my mind the evidence identifying the accused as the robber is not weak at all, but is exceedingly strong. While the person who was robbed, and who on the witness stand identified the accused as his assailant, was not personally acquainted with the accused, still he walked alongside of him and talked with him for nearly a mile before the assault was made. Immediately after .the robbery the victim described the robber, and the accused answered that description. A little later the accused was arrested, and, being brought before the victim, was promptly identified. He then bore on his face scratches received in some recent scuffle. His shoes fitted the tracks found at the scene of the robbery. ' He had been seen to go in the direction of that place shortly before the robbery occurred. The victim, as a witness, stated that he was positive that the man on trial was the man who assaulted him, that there was not only an identity of ordinary physical marks, but that the robber had an impediment in his speech such as the accused had. I have not the slightest doubt of the guilt of the accused.
I can not concur in the view that the remarks of the judge were either prejudicial or improper. I think it is highly expedient and altogether lawful that the trial judge and the jury should frankly and fully confer with each other as to the prospects of a verdict being arrived at, when the jury has been out such a length of time as to indicate the probability of one of those irreconcilable disagree*166ments upon which a mistrial should he declared. It was proper for the judge to know how the jurors stood, in order that he might use sound discretion in determining whether he should declare a mistrial, and it was proper for him to ask how they stood. This is a practice which often and without question has been indulged in by many of the ablest and fairest trial judges of our State, though I frankly confess that it has been avoided by some judges. I can see no just reason for condemning it. For the judge to say to a jury, standing eleven to one, “Usually, where the jury stands eleven to one, the one juror comes to the eleven; but, of course, you must be guided by your own consciences, as the one might be right and the eleven wrong,” was, to my mind, a very proper statement. It indicated to the jury that the judge felt that he should not then declare a mistrial, as there was a probability of a verdict being reached, since' usually the united opinion of eleven jurors has great weight in removing the doubts from the mind of a single dissenting juror; and this was accompanied by a statement that this was a matter of conscience, and that the one juror might be right and the eleven wrong, thus giving the dissenting juror to understand that, while he should allow the counsels and the united opinion of his fellows to influence him to the same extent that any other reasonable being would be influenced, still that he should not yield assentatorily, but only in the event that his own conscience approved of his yielding. This I believe to be a just guide for the deliberations of jurors. Each juror should give weight to the opinions of his fellows, and a juror finding himself in a decided minority should carefully examine his own views, in the light of the increased probability of his being wrong, but should never yield so as to give apparent assent to a verdict which his mind and conscience do not approve.
Hence, I dissent.