dissenting.
I respectfully dissent from the majority opinion.
The trial transcript reveals that the court had instructed the jury, prior to the beginning of its deliberations, that unanimous verdicts were required, and had reiterated these instructions before sending the jurors back for further deliberations subsequent to the challenged incident. The transcript further indicates that, taken as a whole, the court’s remarks immediately subsequent to the reading of the purported verdicts were not such as to intimate any opinion regarding the defendant’s guilt or innocence, as proscribed by OCGA § 17-8-57, or otherwise to influence the jury to find Jackson guilty. Moreover, in the fact situation of the instant case, we find it “highly probable that the error did not contribute to the judgment.” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).
The “highly probable” test is inapplicable, however, when, as in the instant case, a constitutional error is involved. Id. In any event, it is the duty of the court and the prosecutor to ensure that the defendant receives a fair trial. Dean v. State, 247 Ga. 724 (279 SE2d 217) (1981). Under the peculiar facts of the instant case, we cannot say that the publication of a faulty verdict in open court, including the numbers of those voting “guilty” and “not guilty,” could not have had a prejudicial effect upon the jurors’ subsequent deliberations, thereby impinging upon appellant’s Sixth Amendment right to trial by a fair and impartial jury. See Constitution of Georgia, Art. I, Sec. I, Par. XI; Glass v. State, 250 Ga. 736 (300 SE2d 812) (1983); Peek v. Kemp, 746 F2d 672 (11th Cir. 1984). Although the United States Supreme Court has held that in certain circumstances a litigant in the state courts may waive his right to a unanimous verdict, we find no case in which it has been held that a less than unanimous verdict may be forced upon a party without his consent. See Johnson v. Louisiana, 406 U. S. 356 (92 SC 1620, 32 LE2d 152) (1972); Apodaca v. Oregon, 406 U. S. 404 (92 SC 1628, 32 LE2d 184) (1972); Phillips v. Meadow Garden Hosp., 139 Ga. App. 541 (228 SE2d 714) (1976). See also Comment, 16 Ga. Bar J. 234 (1983); Comment, 7 Ga. Law Rev. 339 (1973).
In the instant case, given the patent fact that at least one of the jurors had grossly misunderstood the meaning of the word “unanimous,” the court should have been alerted to the potential for confusion on the part of unsophisticated laymen and, before sending the jurors back to the jury room, should have bent over backwards to explain to them in explicit, non-technical terms, that whatever the verdict might finally be, it must be the verdict of each of the twelve individual jurors; and, moreover, that the dissenting jurors were under no compulsion to change their verdicts merely because they might feel themselves pressured by the majority. The facts of Dyson v. State, 155 Ga. App. 297 (270 SE2d 711) (1980), are distinguishable from *867those in the instant case; the state’s citation of Dyson therefore does not support the proposition for which it is made.
Decided February 18, 1986. Chevene B. King, Jr., for appellant. Hobart M. Hind, District Attorney, for appellee.In Hibdon v. United States, 204 F2d 834 (6th Cir. 1953), the court held, at 838, that the requirement of a unanimous verdict is an “inescapable element of due process,” and that to accept a less than unanimous verdict would be to negate the constitutional “beyond a reasonable doubt” requirement. “[T]he rights of the best of men are secure only as the rights of the vilest and most abhorrent are protected.” People v. Gitlow, 234 N. Y. 132, 158 (136 NE 317) (dissenting opinion); Ware v. State, 128 Ga. App. 407 (196 SE2d 896) (1973). Out of an abundance of caution, therefore, we would hold that the trial court erred in denying appellant’s motion for new trial, and would remand this case for proceedings not inconsistent with such a holding.
I am authorized to state that Presiding Judge McMurray joins in this dissent.