Where the action of the trial judge and his remarks to the jury, when from time to time they are brought before him stating their inability to agree, amounts to coercion, the verdict must be set aside ; People v. Sheldon, 156 N. Y. 268, 50 N. EL 840, 41 L.
R. A. 644, 66 Am. St. Rep. 564, where Par ker, C. J., discusses the subject at large.
It is within the discretion of the trial judge to recall a jury for inquiry as to their difficulty and for further instructions if deemed advisable, but it is not permissible to inquire in what proportion they are di vided, and any instructions in respect to their duty to agree should be carefully guard ed, so as not to press that duty unduly upon the minority ; Lake Erie & W. R. Co. v. Craig, 80 Fed. 496, 25 C. C.' A. 585.
At common law the coercion of juries was both usual and proper; Proff. Jury Trials § 475; and they were kept together practically as prisoners until agreement; Thomp. & Mer. Juries § 310; but that custom no longer obtains ; Physioc v. Shea, 75 Ga. 466 ; and it is settled law that the court may advise the jury to agree but should not threaten long confinement ; Phoenix Ins. Co. v. Moog, 81 Ala. 335, 1 South. 108; Terre Haute & I. R. Co. v. Jackson, 81 Ind. 19; East Ten nessee & W. N. C. R. Co. v. Winters, 85 Tenn. 240, 1 S. W. 790; Slater v. Mead, 53 How. Pr. (N. Y.) 57; State v. Grizzard, 89 N. C. 115 ; but it is not error for the judge to refer to the length of the term and add that he will give them plenty of time to consider and direct their proper accommoda tion ; Osborne v. Wilkes, 108 N. C. 653, 13 S. E. 285. It is also held that any language used by the bailiff in charge tending to coer cion will be a ground for a new trial; Cole v. Swan, 4 G. Greene (Iowa) 32 ; Obear v. Gray, 68 Ga. 182; but a mere jesting remark of the bailiff will not be sufficient to require a new trial, although taken seriously by some of the jury ; Pope v. State, 36 Miss. 121; where it does not appear that any prejudice resulted ; Darling v. R. Co., 17 R. I. 708, 24 Atl. 462, 16 L. R. A. 643, and note.
The removal of a case from the considera tion of a jury, in criminal cases, can only take place by consent of the prisoner ; 6 C.
& P. 151; 5 Cox, Cr. Cas. 501; State v. Slack, 6 Ala. 676 ; or by some necessity ; Wright v. State, 5 Ind. 290, 61 Am. Dec. 90 ; McCauley v. State, 26 Ala. 135 ; Poage v. State, 3 Ohio St. 239 ; Williams v. Com., 2 Gratt. (Va.) 570, 44 Am. Dec. 403 ; Reynolds v. State, 3 Ga. 60 ; so as to compel the pris oner to be tried again for the same offence; 4 Bla. Com. 360. But where such necessity exists as would make such a course highly conducive to purposes of justice ; U. S. v. Coolidge, 2 Gall. 364, Fed. Cas. No. 14,858 ; Com. v. Cook, 6 S. & R. (Pa.) 586, 9 Am. Dec. 465; 2 D. & B. '166 ; People v. Goodwin, 18 Johns. (N. Y.) 205, 9 Am. Dec. 203; Com. v. Fells, 9 Leigh (Va.) 620; 13 Q. B. 734; it may take place.
Where the state court has the right to dis charge, a jury for want of agreement, the result is a mistrial and the accused cannot on a subsequent trial interpose the plea of once in jeopardy ; Keerl v. State of Montana, 213 U. S. 135, 29 Sup. Ct. 469, 53 L. Ed. 734, where the question was suggested but not de cided whether the fourteenth amendment in itself forbids a state from putting one of its citizens in a second jeopardy.
In a criminal case, the court has power to withdraw a juror, but this action rests in the sound discretion of the court and is to be exercised only in very extraordinary and striking circumstances in order to prevent the failure of justice ; State v. Lewis, 83 N. J. L. 161, 83 Atl. 692.
The question of necessity seems to be in the decision of the court which tries the case ; State v. Updike, 4 Harr. (Del.) 581; Hurley v. State, 6 Ohio 399; People v. Green, 13 Wend. (N. Y.) 55; U. S. v. Perez, 9 Wheat. (U. S.) 579, 6 L. Ed. 165. But see 1 Cox, Cr. Cas. 210; 13 Q. B. 734 ; Wright v. State, 5 Ind. 292, 61 Am. Dec. 90. A distinc tion has been taken in some cases between felonies and misdemeanors in this regard; 3 D. & B. 115; U. S. v. Gibert, 2 Sumn. 19, Fed. Cas. No. 15,204 ; State v. Honeycutt, 74 N. C. 391; but is of doubtful validity; People v. Goodwin, 18 Johns. (N. Y.) 187, 9 Am. Dec. 203 ; Com. v. Bowden, 9 Mass. 494; Coro. v. Olds, 5 Litt. J(Ky.) 137; McCauley v. State, 26 Ala. 135; Campbell v. State, 11 Ga. 353.