(dissenting in part). In the lucid and exhaustive opinion of the learned presiding judge, I most heartily concur, except to that portion covering the question of the supplemental charge of the trial judge and the results of the case. I respectfully dissent from the views expressed on the supplemental charge, and necessarily from the result. Upon the supplemental charge only, and the-inquiry made in connection therewith, is a reversal of the whole case based.
I do not believe that reversible error should be predicated upon the inquiry that was made of the jury, after it had expressed difficulty in reaching an agreement, and upon the additional charge given by the court. In support of my conclusions in the premises, I submit the following legal principles not in controversy:
1. It was proper for the trial court to recall the jury for further instructions after they had been in deliberation for a considerable length of time.
“It is a familiar practice to recall a jury after they have been in deliberation for any length of time, for the purpose of ascertaining what' difficulties they, have in the consideration of the case, and of making proper efforts to assist them in the solution of those difficulties. It would he startling to have such action held to he error, and error sufficient to reverse a judgment. The time at which such a recall shall be made, if at all, must be left to the sound discretion of the trial court.” Allis v. United States, 155 U. S. 117, loc. cit. 123 (15 Sup. Ct. 36, 39 L. Ed. 91).
2. It is not only the right, but it is the duty, of the trial judge, after a lengthy deliberation of the jury has been unavailing, to aid the jury by declaring the law covering the particular difficulties that may seem to confront the jury. Allis v. United States, supra; Allen v. United States, 164 U. S. 492, loc. cit. 501, 17 Sup. Ct. 154, 41 L. Ed. 528; United States v. Allis (C. C.) 73 Fed. 165, loc. cit. 182.
3. In declaring the law in a supplemental charge -to the jury, undoubtedly the court should know something of the difficulties encountered by it, as otherwise the court would not know what legal principles to enunciate as applicable to the facts in the case. Under such circumstances the court may guardedly make such inquiries of the jury as may aid in “ascertaining what difficulties they have in the consideration of the case, and of making proper efforts to assist them in the solution of those difficulties.”
4. It is the law that:
“While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in Úie! jury room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to, the arguments and .with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his *791opinion of the case at that moment, or that he should close his ears to the arguments of men who are equally honest and intelligent as himself.” Allen v. United States, 164 U. S. 492, loc. cit. 501 (17 Sup. Ct. 157, 41 L. Ed. 528.
This law should not ordinarily be declared to the jury until a situation arises requiring it, and such a situation in the instant case arose when the jury had failed to agree, and this was true in all the cases cited in the majority opinion. United States v. Allis (C. C.) 73 Fed. 165, loc. cit. 182; St. Louis & San Francisco R. R. Co. v. Bishard, 147 Fed. 496, loc. cit. 500-501. 78 C. C. A. 62; Allis v. United States, 155 U. S. 117, loc. cit. 123, 15 Sup. Ct. 36, 39 L. Ed. 91; Allen v. United States, 164 U. S. 492, loc. cit. 501, 17 Sup. Ct. 154, 41 L. Ed. 528; Burton v. United States, 196 U. S. 283, loc. cit. 305, 306, 307, 25 Sup. Ct. 243, 49 L. Ed. 482; Quong Duck v. United States (C. C. A.) 293 Fed. 563.
5. The primary question here is whether the trial judge should be convicted of error for the method employed in “ascertaining what difficulties” confronted the jury. When the jury was recalled, the following colloquy between the court and the foreman of the jury occurred:
“Tlie Court: Gentlemen, have you been able to arrive at a verdict?
“The Foreman: We have not yet, your honor.
“The Court: Is there anything in the way of misunderstanding of the issues that the court can help you upon, or is it just a matter of disagreement upon the facts?
“The Foreman: It seems to be a disagreement upon the facts.
“The Court: Mr. Foreman, the court does not wish you to say how you stand, but I would like to know if you are evenly divided, or whether there is a large preponderance one way or the other.
“The Foreman: There seems to be a large preponderance one way.”
Thereupon the court gave the supplemental charge set forth in the majority opinion. It is to be noted that the court did not seek to ascertain how the jury stood, or the numerical proportion of the- jury, but sought the sole information, “if you are evenly divided, or whether there is a large preponderance one way or the other." The court was entitled to know this, in view of the pronouncements of the Supreme Court, so that proper efforts might be made “to assist them in the solution of those difficulties.” In the case of United States v. Allis, supra, the main and supplemental charge of the court is reported. The able jurist, who presided in the trial of that case, is the learned author of the majority opinion in this case. The charge in the Allis Case was so clear, accurate, and complete, and so easily understood, that it has been published as a model of judicial clarity and accuracy. The following from the supplemental charge in that case is apposite:
“But, in conferring together, you ought to pay proper respect to each other’s opinions, with a disposition to be convinced by each other’s arguments. And, on the one hand, if much the larger number of your panel are for a conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one, which makes no impression upon the minds of so many men, equally honest, equally intelligent, with himself, who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath.”
This charge was approved in Allis v. United States, supra. Wherein did the court err in the inquiry propounded solely for the purpose *792of determining the applicability of this law? Assume that the court had not made the inquiry, but had simply declared the law; is it not reasonable to believe that the jury in their own minds would have immediately made even the numerical proportion ? They knew the exact standing of the jury numerically. The minority of the jury would necessarily feel the force of the charge to the same extent, and no further, than if, in giving the charge, the court had been authentically informed that there was a majority and a minority. If it might seem, as intimated in the Burton Case, to be an embarrassment and a coercion to a minority because the court knew the exact number of the minority, yet such a situation does not exist in this case. The court did. not know the number, but only that there was a large preponderance one way. The instant case does not fall under the ban of either the civil case, cited in the majority opinion, St. Louis & San Francisco R. Co. v. Bishard, supra, nor the well-known case of Burton v. United States. In the former, the case was tried to 11 jurymen. The jury failed to agree, and, upon being recalled, the court propounded such an inquiry as to elicit the information that they stood 10 to 1, whereupon the court said:
“The juror who is standing out against the other 10 should listen to their arguments, and should try and look at the case from their viewpoint.”
Clearly this was wrong as it was an unguarded statement, and could not be sustained upon any theory. The difference between that case and the one under consideration is so marked that it gives no aid here. It is not analogous. In the Burton Case, chiefly relied upon in the majority opinion, the jury was recalled after a lengthy deliberation. The court desired “to know the number who stand the one way and the number who stand another way,” and was informed by the foreman of the jury that they stood “eleven to one.” Whereupon the court said:
“The jury stand 11 to 1. * * * In the light of that fact I feel constrained to make a statement to you, and in making it to use the language of the Supreme Court of the United States as found in Allen v. United States.”
Concerning this inquiry, the court said:
“That a practice ought not to grow up of inquiring of a jury, when brought into court because unable to agree, how the jury is divided. * * * Such a practice is not to be commended, because we cannot see how it may be material for the court to understand the proportion of division of opinion among the jury.”
The court, in using the above language, did not have in mind the language of the instant case as to whether there was a preponderance one way or the other, but had in mind the inquiry that elicited the information that the jury stood 11 to 1. So far as may be known in the case at bar, the jury may have stood 8 to 4 or 9 to 3. In either case it could have been characterized as a large proportion one way. Furthermore, in the Burton Case, the court as a premise to its supplemental charge said:
“The jury stand 11 to II * * * In the light of that fact I feel constrained to make a statement to you. * * * ”
*793This, of course, did expose the one dissenting juryman to the court, though not by name. The psychology of the situatiqn was to present one man as holding out against the other 11, and “in the light of that fact” the court charged the jury, and the lone juryman doubtless felt that the entire charge was directed at him. Neither is that case analogous here. Even if the court had so charged, without making the_ inquiry, the jury would have known that only one man was dissenting, and the 11 doubtless would have argued that the charge applied specifically to the lone juryman. According to the majority opinion, this would have been proper. The criticism in the Burton Case was directed against the court’s knowledge of the exact number in giving the charge. Moreover, the Burton Case was not reversed because of the inquiry and the supplemental charge. The court merely criticized the practice. That case was reversed because the court refused to indicate to the jury that certain requested instructions read to the jury “were just as much a part of your honor’s charge as that which the court read as emanating from the court itself,” and all the language quoted from the Burton Case in the majority opinion directly referred to this action of the court, and did not refer in any way to the supplemental charge and the inquiry preceding it.
As to the supplemental charge itself, it is argued that the excerpt •from the opinion in the Allen Case “was not any part of the charge to the jury in that case, nor did the Supreme Court recommend that excerpt as a fit charge to the jury under such circumstances as existed in that case or in this.” By referring to the opinion, it is to be noted that the court did not even criticize the charge, but tacitly approved it in the following language:
“All that the judge said in regard to the propriety and duty of the jury to fairly and honestly endeavor to agree could have been said'without asking for the fact as to the proportion of their division.”
The inquiry and the charge that followed in this case were both characterized by care and caution. The jury were specifically admonished :
“That the court desires in no wise to influence you at all in respect to a verdict, but simply to emphasize the fact that, if you can consistently and by consultation with each other reach a verdict, it is highly desirable.”
The entire record reflects an attitude of commendable fairness and impartiality on the part of the trial judge. At this stage of the proceeding the jury must have been impressed with that fairness. No juryman could have felt himself coerced by the court’s charge. Convinced as I am that the rights of plaintiff in error were in no way prejudiced by the inquiry and supplemental charge, and that he has had a fair trial, it is my opinion that the judgment and sentence of the trial court should be affirmed, save only as to counts IS and 16.
I concur in a reversal as to these counts.