(concurring) :
I concur with the result reached by my Brother Anderson in this case, but I do so chiefly on the following basis.
A system which requires the unanimous verdict of a jury of twelve can function satisfactorily in most cases only because most jurors are reasonable men and women, and after a certain amount of discussion has produced a large majority in favor of one view, those in the minority may be willing to join the majority in the belief that if so many other reasonable people have a contrary view, the views of the minority may well be mistaken. Instructions to the jurors in both state and federal courts stress the importance of jurors listening to the views of one another and making allowance for the fact that there can be a reasonable difference of opinion.1
Moreover, a reasonable juror knows that even though he might prefer to have the jury reach a different result, it is also important that it reach some result. Hence he does not hesitate to reexamine his original views and to give up his opinion if convinced, by the fact that everyone else has contrary views, that his opinion is erroneous. He seeks primarily to agree upon a verdict so long as he can do so without violating his individual judgment and conscience. This commonsense view of getting things decided usually prevails in all groups under circumstances in which there must be a free expression of opinion.
Indeed it is certainly a proper reason for concurring with the majority that the doubting juror is the only one of a different view from his eleven fellow jurors, as was the case here. Were the court permitted to examine jurors to elicit whether they had surrendered their views, there would be few verdicts which could withstand such examination. Thus, there is every reason to encourage full and free discussion among jurors and their readiness to give up their views and to yield to the persuasions of their fellow jurors, so long- as they do not surrender their honest convictions *1034solely for that reason. Unanimity is possible only if a minority is willing to go along with the majority.
In this case there was no basis for the district judge to find that the one juror did not in fact agree at the time the verdict was rendered. The juror never said that it was not her verdict. On the contrary it was implicit in her statement that she gave up her views and that she did in fact ultimately agree so that the verdict would be unanimous. Under our system this was a good and proper reason, and it merits no further cross-examination either by the court or by anyone else.2
Under the circumstances here, mandamus is required since it is the only way in which the appellate court can correct the egregious error of the district court in setting aside the verdict of the jury and in scheduling a needless retrial.
. The sample instruction on this point recommended for federal courts by the American Bar Association in its Standards Relating to Trial by Jury (1968) at 145, and by the Hon. Edward J. Devitt and Professor Charles B. Blackmar in their book, Federal Jury Practice and Instructions (1970) at 226-7, reads as follows:
The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another, and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. You must each decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, and change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence, solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.
The recommended instructions for state courts are similar. See, Instructions (1965) at 75-6; California Jury Instructions : Criminal (ed. Superior Court of Los Angeles County) (1958) at 30; California Jury Instructions: Civil (ed. Superior Court of Los Angeles County) (1956) at 57-9; Illinois Judicial Conference, A Handbook for Jurors in Illinois Civil Cases (1960) ; A Handbook for Jurors — Connecticut (1957) at 13-14; National Conference of State Trial Judges, The State Trial Judge’s Book (1969) at 172-3.
. The A.B.A. Standards Relating to Trial by Jury (1968) states at 162, with respect to polling the jury:
The poll should be conducted so as to obtain an unequivocal expression from each juror. If this is obtained, then any volunteered statements by the jur- or in explanation of his verdict may be disregarded. People v. Burnett, 204 Cal.App.2d 453, 22 Cal.Rptr. 320 (1962); State v. Schmelz, 17 N.J. 227, 111 A.2d 50 (1955). The juror is not to be asked to give reasons for his verdict, State v. Brown, 110 Ohio App. 57, 168 N.E.2d 419 (Ohio 1953) * * *.