I dissent. I am not satisfied with the views expressed in the opinion of the Chief Justice as to the refused instruction upon the individual duty of each juror in respect of the matter of reasonable doubt. I do not consider’ the Hurst Case (23 Mont. 484, 59 Pac. 911), as conclusive, nor the Hamilton Case (57 Iowa, 596, 11 N. W. 5), cited with approval in the Hurst Case, as well considered, or supported at all by the sole authority to which it refers as deciding an alleged similar case. (State v. Rorabacker, 19 Iowa, 154.) The latter case was' one in which the refused instruction in effect declared that, one juror having a reasonable doubt, the twelve should acquit; whereas, the instruction in 57 Iowa, 11. N. W., was somewhat similar to that in the Hurst Case. In the Hurst Case- the instruction asked for is far from being the same as the following, which is one of those'asked for and refused in the case at bar, to-wit: “You are instructed that your verdict must be unanimous, and that each juror should decide for himself upon his oath from the law as given to you by the court and the evidence in the case, as to what his verdict should be. No juror should yield his deliberate, conscientious convictions as to the guilt or innocence of .the defendant, either at the instance of the majority- of the jury for the sake of unanimity, or to prevent a mistrial, but you are further instructed that nothing in this instruction is to be taken' to mean that you shall not fully and fairly discuss among yourselves all the evidence and facts surrounding the case,- as disclosed by the evidence, or that any of your number shall not be open to conviction by fair, honest argument, by any member or members of the jury, founded upon the evidence- produced on the trial and the law as given you by the court.” . '. -
It is conceded by-all that this instruction correctly states the *8law, and was proper to be given whether asked or not-; but was its refusal error ? I think it was. There is not in any part of the charge to the jury any statement or reference to the separate duty and responsibility of each juror. The jury was instructed as a body. Nowhere, having been sworn to try the case upon the evidence, are they told that- they shall take the law from the court and obey it, and nowhere are they told what the law is as to consulting with their fellows, or as to how to act upon their individual opinions, separately, after such consultation. It is a matter- of common knowledge that many jurors surrender to others, and da it without being convinced to a moral certainty by the evidence under the law. Men who have a reasonable doubt as to guilt in any degree will often concur in a verdict if those who have no doubt of guilt in the highest degree will agree to a verdict in a lesser degree Men. thus and in other ways often surrender their views against conscience, and all judges know it. It is the duty of the juror to consult with his-fellows and to consider the views of the other jurors, but, ultimately, in his own mind and of his own virtue, to determine what is his duty and to declare it, acting upon his own oath and his own judgment This he should be told plainly if the defendant so- pray. (People v. Dole, 122 Cal. 486, 55 Pac. 581, 68 Am. St Rep. 50; State v. Witt, 34 Kan. 488, 8 Pac. 169; Castle v. State, 75 Ind. 146.)
It is known’to all who have to do with them that jurors, for sake of unanimity, agree to compromise verdicts in ' criminal cases; and in Connecticut (State v. Smith, 49 Conn. 376), and in Massachusetts (Commonwealth v. Tuey, 8 Cush. 1), the courts thought it the duty of the jurors to consult and to- mutually concede in their deliberations ; and in the Massachusetts case, with the approval of the supreme court, it was emphatically urged to such an extent and in such language that, in my opinion, the average juror would be convinced that he would be excusable in thinking that he had no right to think his own thoughts if his views were opposed to; those of eleven others, “equally honest, and equally in*9telligent.” To use sncb a whip suggests the necessity of a curb in the shape of an instruction to1 the effect appearing in the fair and correct prayer of the defendant refused in the case at bar. Is it not begging the question to assume that a juror’s fellows are “equally honest and equally intelligent?”
I think the case should be reversed for error in refusing so correct an instruction, which, in my opinion, is needed in every criminal case.