dissenting:
I respectfully dissent from the majority’s conclusion that the trial judge’s instructions violated S.C.Code Ann. § 14-7-1330 (1976) (procedure when jury fails to agree). Therefore, I would affirm.
In Edwards v. Edwards, 239 S.C. 85, 121 S.E.2d 432 (1961), the trial court instructed the jury after its second deadlock as follows:
I’m going to ask you in all seriousness, Gentlemen, to make one more attempt at this case. When you tell me you can’t do it, that’s going to be the end of it, because I’m not going to send you back again. So, I’m putting it right straight up to you, see what you can do with it, Gentlemen. Was there any question any of you Gentlemen wanted to ask?
Our Supreme Court analyzed the trial judge’s instructions in light of the defendants’ assertion that the comments violated S.C.Code Ann. § 38-303 (1952) (now § 14-7-1330), which provided a trial judge may not send a jury out for further deliberation without the jury’s consent once it has twice indicated it is unable to agree on a verdict. The court stated:
There was no response or indication of unwillingness on the part of any member of the jury, but on the contrary they returned immediately to the jury room for further deliberation. No verbal acceptance of the request of the trial Judge was made, but consent was implied. Had there been a statement to the effect that further consideration of the case was without their consent, it would have become the duty of the trial Judge to discharge them. However, under the circumstances, if the Judge was satisfied in the exercise of his discretion that the jury consented to return for further deliberation, he should not have dismissed them but permitted further deliberation as was done in [the] instant case; State v. Rowell, 75 S.C. 494, 56 S.E. 23; State *482v. Freely, 105 S.C. 243, 89 S.E. 643; State v. Drakeford, 120 S.C. 400, 113 S.E. 307.
Id. at 93,121 S.E.2d at 436 (emphasis added).
In Edwards, the court held verbal acceptance by the jury is not required and consent would be implied where the trial judge is satisfied that the jury has in fact agreed to continue deliberating. Citing the precedent of Edwards, our Supreme Court stated in State v. Pauling, 322 S.C. 95, 99, 470 S.E.2d 106, 109 (1996): “If the judge is satisfied that the jury consents to return for further deliberation, he should not dismiss it, but should permit further deliberation.” The court noted, “[Wjhether the jury consented to further deliberation or not, because it asked for further explanation of the law, the judge did not err in sending the jury out a second time after he answered the question.” Id. at 100, 470 S.E.2d at 109.
Pauling and the cases cited in Edwards indicate some manifestation of unwillingness to return is necessary to find a jury was forced to deliberate without its consent. For example, in State v. Rowell, 75 S.C. 494, 509, 56 S.E. 23, 29 (1906), it was said: “[W]e hold that there must be some indication of unwillingness on the part of the jury to again retire to agree upon the verdict, and they must not ask for a charge by the judge upon any matters committed to the jury .... ” In Rowell, the jurors gave no objection when asked to return for further deliberation; they even asked the judge to repeat the law on self-defense.
In State v. Freely, 105 S.C. 243, 89 S.E. 643 (1916), the court observed that even in cases where the jury does not ask for instructions on the law and the jury is not advised that it cannot be sent back without its consent, there is no violation of the statute where it appears to the judge, under the circumstances, that the jury has consented to the return. This clearly encompasses the implied consent approved in Edwards:
The jury were not advised that they could not be sent back without their consent. They did not ask for instructions on the law.
In none of this was there any violation of the statute.... ... At the second return of the jury, without having agreed upon a verdict, they might have asked for further explana*483tion of the law, in which event the court might have again sent them out. That will not be questioned. And at the second return without having agreed upon a verdict, they might be sent out again by their own consent. That will not be disputed.
So the question is, did it appear to the judge, under all the circumstances there presented, that the jury consented to return the third time? Plainly if the jury had said: “We can’t agree. Its no use to send us back; we desire to be discharged” — the duty would have been imperative upon the judge to discharge them. If the same thing had been manifest from all the circumstances, the same imperative duty would have operated. If the circumstances satisfied the judge, in a wise exercise of his discretion, that the jury consented to the return, then it was lawful to return them. The exercise of such a discretion at so delicate stage of a trial ought not to be disturbed unless it was obviously wrongly exercised.
Id. at 247-48, 89 S.E. at 644.
In the case now before us, the judge advised the jury in pertinent part:
But I’m going to ask you to try if you can to make one last effort at trying to reach a unanimous verdict, if possible. Again, I’m not going to ask any individual juror to give up his or her conscious convictions about the case just simply to reach a verdict but on the other hand I am going to ask you to re-evaluate your position and if there is some question about the law, I’ll be more than happy to instruct you on the law if there is some misunderstanding in that regard. (Emphasis added.)
The judge’s final comment to the jury was as follows:
In any event I believe both sides would like, if possible, for you to reach a unanimous verdict if you can. So I’m going to continue the trial in the other case and ask you to make a continued effort to reach a unanimous verdict and let me know. (Emphasis added.)
The judge’s statements that he was not asking any juror to give up his or her convictions about the case coupled with his request to make “one last effort” to reach a verdict “if possible” does not mandate that the jury return with a unani*484mous verdict. Rather, as in Edwards, the judge asked the jury to make one last attempt at agreement, with the possibility remaining that the jury might be unsuccessful in that effort, resulting in a mistrial. This language compares directly with the judge’s request in Edwards that the jury “make one more attempt at this case.” Although the judge did not explicitly ask the jury whether it consented to resume deliberations after the second deadlock, the jury continued its deliberations without complaint or question, just as in Edwards. Thereafter, the jury sent a note to the trial judge indicating that it was making progress, thus further manifesting consent to continue deliberations.
In a triumph of semantics over realism, the majority imposes a gargantuan burden on trial judges to communicate with jurors in a rigid, strict, and legalistic manner. The majority emasculates the principle of “implied consent” recognized in Edwards. This record does not contain any indicia of coercion. Additionally, the writing penned by the majority extirpates “continued effort” from the judge’s final comment and misconstrues the efficacy of the phrase. Nothing in the record supports the conclusion by the majority that “the effort being required is open-ended; that is, a continuing one, until a unanimous verdict is rendered.” The absurdity resulting from this interpretation is a mathematical counting of jury appearances in the courtroom with complete surrender of judicial discretion. It is clear from the judge’s final remarks asking the jury to reach a verdict “if possible” and “if you can” that there was no mandate to reach agreement.
In rejecting the applicability of Edwards to the case at bar, the majority attaches significance to a mystical, “mega force” relationship inter sese judge and juror. The majority avers, “No one can seriously contest the judge’s authority to sequester jurors and order them to deliberate, with the inherent power to punish those who refuse to obey.”
The inherent authority to sequester jurors or to punish for contempt is inapposite to this trial record. The trial judge did not force jury deliberation in this case. The majority notes “[a] jury’s perception of judicial control over its time is undeniable.” Jury perception to the contrary, as averred by the majority, the judge’s colloquy with the jurors was within *485the confines of section 14-7-1330. The judge in this instance merely asked the jurors to make one last effort to obtain a verdict, if possible, without doing harm to their individual consciences; the judge in no way mandated that the jury stay until it returned a unanimous verdict. Cf. State v. Kelley, 45 S.C. 659, 24 S.E. 45 (1896) (court found violation of the predecessor statute to section 14-7-1330 where jurors were forced to continue deliberations while confined in the jury room overnight despite the fact that they sent word on two occasions that they desired to be let out).
In State v. Simon, 126 S.C. 437, 120 S.E. 230 (1923), cited by the majority, our Supreme Court found reversible error where the jury was notified that they would be kept together in the jury room overnight for a specified time, about 15/6 hours, unless an agreement was sooner reached. In Simon, the jury retired to deliberate at 4:00 p.m. and returned at 5:40 p.m. to report they were deadlocked. Just before 6:00 p.m., the judge informed the jurors,
I will give you this envelope, and if you agree between now and 9:30 tomorrow morning, you can come out. If you do not agree between now and then, I can talk to you then, and, if I find you still cannot agree, I would not keep you there any longer.
Id. at 442^3,120 S.E. at 232.
Our Supreme Court began by reviewing the purpose of the statute prohibiting a jury from being forced to deliberate a third time without its consent:
[I]t was the clear intendment of the statute to give the jury the right to indicate to the court its own view of when time for due and thorough deliberation had elapsed by returning “a second time without having agreed upon a verdict,” and to make that action decisive of the question if accompanied by any expression of unwillingness to retire for a third time____If so, it is obvious that the effect of a requirement that the jury shall be kept together for a specified time, unless an agreement is sooner reached, would be to deprive the jury of the right to an earlier discharge in the contingency provided for by the statute. Such bearing of the statute is to be considered in connection with the general rule which is thus stated by the author of an extended note *486on this subject (11 Ann. Cas. [1129] at page 1136 [20 S.D. 489,107 N.W. 829]):
“In most of the jurisdictions it is held that the trial court should not mention how long he intends to keep the jury deliberating” — citing cases.
Id. at 444-45, 120 S.E. at 232-33 (emphasis added).
The Simon court concluded that reversal was warranted based on the judge’s instructions that the jury could not cease deliberation before the specified time unless it reached a unanimous verdict because such instruction was coercive:
When the jury were thus squarely faced with a night in the jury room, absence from unprotected families, and a grueling endurance test of 15% hours in the kind of quarters usually available for that purpose, we are unable to resist the conclusion that the judge’s definite announcement, in effect, that the jury could either find a verdict and walk out or remain in the jury room for 15 % hours was a more potent influence in the writing of the verdict than any consideration having to do with the law and the evidence. Under all the circumstances of this particular case, we are impressed with the view that the verdict was improperly influenced to the defendant’s prejudice by what was in the nature of a Hobson’s choice thus presented to the jury. The appellant’s third exception must therefore be sustained.
Id. at 446,120 S.E. at 233.
It is evident from Simon that a trial judge may not coerce a verdict by forcing a jury to deliberate for a prescribed period •with no chance of ceasing deliberations unless it returns with a verdict. The court’s obvious concern was that a jury would not be able to determine when it would cease deliberations as contemplated by the statute if the judge could order deliberations to continue despite the jury’s objection or continued inability to agree. That is not the situation in the case now before us. The judge here did not require deliberations to continue for a specified period, or even until a verdict was reached. Just as in Edwards, the judge simply asked them to make one last effort to reach a verdict, “if possible.”
As for the jury’s note indicating a second deadlock, it was necessarily written before the judge gave his final instructions requesting one final effort by the jury; therefore, it is not *487dispositive on the jury’s reaction to the judge’s subsequent request for one “last” effort to reach a verdict, “if possible.” The majority opinion in the application of section 14-7-1330 creates a judicial straightjacket in regard to the communication process of judge and juror. Without any authority or precedent the majority concludes ex cathedra “[t]he significance of the second part of the note is that it describes circumstances under which the requirement of further deliberations is most likely to have a coercive effect, in the case of the lone hold-out who feels the most peer pressure as the perceived cause of the continued confinement.” Experientially, as a former circuit judge, I do not believe this conclusion is warranted (I confess this statement has no precedential potency)-
In my opinion, the trial judge’s instructions did not violate section 14-7-1330. Since the jury returned without indicating an unwillingness to resume deliberations after the judge’s comments, and even indicated their progress in the case before returning a verdict, a mistrial was not warranted. I see no meaningful distinction to be drawn from the Supreme Court’s precedent in Edwards, 239 S.C. 85, 121 S.E.2d 432 (sending jury back after it had returned a second time was not breach of statute where jurors made no response upon being sent back again but had immediately returned to the jury room, thereby implying consent). See also Freely, 105 S.C. 243, 89 S.E. 643 (no violation of the statute if judge could find there was consent to deliberate even though judge did not inform jury it could not be forced to resume deliberations without its consent and the jury asked for no further instructions). Accordingly, I would affirm.