de GRAFFENRIED, J.
The following is the language of Henry J. Caldwell, Judge of the United States Circuit Court: “From an old laAV book on the British Constitution, printed more than 200 years ago, this extract is made: ‘By the laAvs of King Ethelred, it is apparent that juries Avere in use before the Conquest, and they are, as it AAmre, incorporated with our Gonstitu,tion, being the most valuable part of it; for Avithout them no man’s life can be impeached (unless by Parliament), and no one’s liberty or property ought, to be taken from him.’ The italics are in the book. In the judgment of Englishmen the right of trial by jury continues to this day to be the most valuable right secured to them by their Constitution. * * * Lord Commissioner Maynard declared: ‘Trial by jury is the subject’s birthright and inheritance as his lands are, and without Avliich he is not sure to keep them or anything else. This way of trial is his fence and protection against all storms of power.’ And that great constitutional laAvyer, Lord Camden, said: “Trial by jury is indeed the foundation of our free Constitution; take that away and the whole fabric Avill soon moulder into dust.’ * * * In an English laAV book printed a century and a half ago, the author declares: ‘One of the most valuable branches of our laws is that Avliich relates to juries, whose antiquity is beyond the reach of record of history; they have the same era with our Constitution, Avhich cannot survive them; our liberty must expire Avith them, as the animal body with its most vital parts.’ ” — 14 Am. Cr. Rep. 657, 658.
[54]*54So firmly has the system of trial by jury become fixed upon the history of the English-speaking people, and so deeply has it become imbedded in their laws, that upon the adoption of each of our Constitutions the people have declared, as a part of their fundamental law, that the right of trial by jury shall remain inviolate.
1. “The line between the duties of a court and jury * * * is perfectly well defined, and the rigid observance of it is of the last importance to the administration of systematic justice. * * * In this way court and jury are made responsible, each in its appropriate department, for the part taken by each, * * * and in this way alone can errors of fact and errors of law be traced * * * to their proper sources.” — State v. Smith, 6 R. I. 34; Proffatt on Jury Trial, p. 373, note.
“Those who have carefully studied this system have repeatedly pointed out the necessity of keeping [the court and the jury] each in its appropriate sphere, as the certainty and fixedness of our law, as well as the utility of the jury system, depend upon the separation between the duties of the judge and those of the jury.” —Proffatt on Jury Trial, § 306a, p. 373.
2. If a trial judge is permitted to coerce a jury into a verdict, then the value of the system of trial by jury is at an end. In the present case the jury retired to delíbrate upon their verdict about 8 p. m., on October 1st. They remained in the -jury room until 11 p. m., when they were taken by the sheriff to a lodging place where they spent the night. At 7 a. m. of October 2d they again returned to the jury room, where they remained until 11 a. m. of that day. At that time they returned into the courtroom and handed the clerk a paper writing. The presiding judge then asked the jury if they had agreed upon their verdict, and they replied that they had. The clerk thereupon read, under the [55]*55direction of the trial judge, the paper writing which had been handed to him by the jury, and which was as follows: “We, the jury, agree, to disagree.” The court thereupon said to the jury: “Gentlemen, return to your room and resume your deliberations, and don’t come back any more with anything like that. While I am sure that you did not mean it, yet such is absolutely in contempt of court.” In about one hour after that time the jury returned into court with a verdict of guilty, and saying that the defendant- should suffer death. It is not for us to say — and we by no means say — that the trial judge intended, by the above remarks, to coerce the jury into a verdict. We do hold, however, that the remarks had such a tendency, and from the speedy verdict which followed the remarks Ave are of the opinion that the verdict Avas probably influenced by the said remarks of the presiding judge. Before those remarks were made the jury had been out of the courtroom for 15 hours, and during 7 of those hours had been in the jury room deliberating upon their-verdict. At the time those remarks were made the jury had, in effect, just stated to the court that they had come to the conclusion that they were in such a hopeless disagreement about a verdict that they could not arrive at a verdict. In one hour after that, hoAvever, all disagreements had disappeared, and a verdict imposing the highest penalty known to the Iuav had been rendered against the defendant.
Of course, by a somewhat strained construction of the language of the paper writing and of the conduct of the jury in bringing it into court as their verdict, this court, to uphold the action of the trial judge, might say that the jury had simply determined to disregard their sworn duty to try the issues in the case and to render a true verdict according to the evidence, and that they had [56]*56determined to disregard the evidence and simply, without regard to their convictions, had “agreed to disagree.” This language of the jury and their conduct on the named occasion should be given, however, an honest and a fair interpretation; and, so interpreting it, the jury, we think, by what they said and did meant to inform the court, and did in fact inform the court, that after many hours of deliberation, their views arising out of the evidence were so divergent that they had come to the conclusion that they could not agree upon a verdict. The jury may have understood the trial judge, in his remarks to them when they brought in the paper writing, to say in effect, “Go back to your -jury room. It is a contempt of this court for a jury not to be able to agree upon a verdict. Don’t come back into this courtroom without a verdict.” At any rate, when the jury did come back into the courtroom they brought in a verdict, and they knew, when they did so, that they were not then subject to the censure of the court.
“There should be- nothing in the intercourse of the trial judge with the jury having the least appearance of duress or coercion — Phoenix Insurance Co. v. Moog, 81 Ala. 343, 1 South. 115; De Jarnette v. Cox, 128 Ala. 518, 29 South. 618; Shaw v. State, 79 Miss. 577, 31 South. 209.
In this case we adopt the language which was used by this court in De Jarnette v. Cox, supra, viz: “The fact that a verdict was very soon thereafter rendered, notwithstanding the jury had stated to the court that it was impossible to come to a verdict after an effort of more than a day, we think reasonably and satisfactorily shows that the verdict was not uninfluenced by what the court had said.”
In the instant case we think that the trial judge might have explained to the jury that “an agreement to dis[57]*57agree” was not a verdict, that he would not then discharge them, and that they might return to their rooms and further deliberate upon the case. This course he did not pursue, and we think that the course which he did pursue was calculated to coerce a verdict, and that it probably did so.
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de GRAFFENRIED, J.
The following is the language of Henry J. Caldwell, Judge of the United States Circuit Court: “From an old laAV book on the British Constitution, printed more than 200 years ago, this extract is made: ‘By the laAvs of King Ethelred, it is apparent that juries Avere in use before the Conquest, and they are, as it AAmre, incorporated with our Gonstitu,tion, being the most valuable part of it; for Avithout them no man’s life can be impeached (unless by Parliament), and no one’s liberty or property ought, to be taken from him.’ The italics are in the book. In the judgment of Englishmen the right of trial by jury continues to this day to be the most valuable right secured to them by their Constitution. * * * Lord Commissioner Maynard declared: ‘Trial by jury is the subject’s birthright and inheritance as his lands are, and without Avliich he is not sure to keep them or anything else. This way of trial is his fence and protection against all storms of power.’ And that great constitutional laAvyer, Lord Camden, said: “Trial by jury is indeed the foundation of our free Constitution; take that away and the whole fabric Avill soon moulder into dust.’ * * * In an English laAV book printed a century and a half ago, the author declares: ‘One of the most valuable branches of our laws is that Avliich relates to juries, whose antiquity is beyond the reach of record of history; they have the same era with our Constitution, Avhich cannot survive them; our liberty must expire Avith them, as the animal body with its most vital parts.’ ” — 14 Am. Cr. Rep. 657, 658.
[54]*54So firmly has the system of trial by jury become fixed upon the history of the English-speaking people, and so deeply has it become imbedded in their laws, that upon the adoption of each of our Constitutions the people have declared, as a part of their fundamental law, that the right of trial by jury shall remain inviolate.
1. “The line between the duties of a court and jury * * * is perfectly well defined, and the rigid observance of it is of the last importance to the administration of systematic justice. * * * In this way court and jury are made responsible, each in its appropriate department, for the part taken by each, * * * and in this way alone can errors of fact and errors of law be traced * * * to their proper sources.” — State v. Smith, 6 R. I. 34; Proffatt on Jury Trial, p. 373, note.
“Those who have carefully studied this system have repeatedly pointed out the necessity of keeping [the court and the jury] each in its appropriate sphere, as the certainty and fixedness of our law, as well as the utility of the jury system, depend upon the separation between the duties of the judge and those of the jury.” —Proffatt on Jury Trial, § 306a, p. 373.
2. If a trial judge is permitted to coerce a jury into a verdict, then the value of the system of trial by jury is at an end. In the present case the jury retired to delíbrate upon their verdict about 8 p. m., on October 1st. They remained in the -jury room until 11 p. m., when they were taken by the sheriff to a lodging place where they spent the night. At 7 a. m. of October 2d they again returned to the jury room, where they remained until 11 a. m. of that day. At that time they returned into the courtroom and handed the clerk a paper writing. The presiding judge then asked the jury if they had agreed upon their verdict, and they replied that they had. The clerk thereupon read, under the [55]*55direction of the trial judge, the paper writing which had been handed to him by the jury, and which was as follows: “We, the jury, agree, to disagree.” The court thereupon said to the jury: “Gentlemen, return to your room and resume your deliberations, and don’t come back any more with anything like that. While I am sure that you did not mean it, yet such is absolutely in contempt of court.” In about one hour after that time the jury returned into court with a verdict of guilty, and saying that the defendant- should suffer death. It is not for us to say — and we by no means say — that the trial judge intended, by the above remarks, to coerce the jury into a verdict. We do hold, however, that the remarks had such a tendency, and from the speedy verdict which followed the remarks Ave are of the opinion that the verdict Avas probably influenced by the said remarks of the presiding judge. Before those remarks were made the jury had been out of the courtroom for 15 hours, and during 7 of those hours had been in the jury room deliberating upon their-verdict. At the time those remarks were made the jury had, in effect, just stated to the court that they had come to the conclusion that they were in such a hopeless disagreement about a verdict that they could not arrive at a verdict. In one hour after that, hoAvever, all disagreements had disappeared, and a verdict imposing the highest penalty known to the Iuav had been rendered against the defendant.
Of course, by a somewhat strained construction of the language of the paper writing and of the conduct of the jury in bringing it into court as their verdict, this court, to uphold the action of the trial judge, might say that the jury had simply determined to disregard their sworn duty to try the issues in the case and to render a true verdict according to the evidence, and that they had [56]*56determined to disregard the evidence and simply, without regard to their convictions, had “agreed to disagree.” This language of the jury and their conduct on the named occasion should be given, however, an honest and a fair interpretation; and, so interpreting it, the jury, we think, by what they said and did meant to inform the court, and did in fact inform the court, that after many hours of deliberation, their views arising out of the evidence were so divergent that they had come to the conclusion that they could not agree upon a verdict. The jury may have understood the trial judge, in his remarks to them when they brought in the paper writing, to say in effect, “Go back to your -jury room. It is a contempt of this court for a jury not to be able to agree upon a verdict. Don’t come back into this courtroom without a verdict.” At any rate, when the jury did come back into the courtroom they brought in a verdict, and they knew, when they did so, that they were not then subject to the censure of the court.
“There should be- nothing in the intercourse of the trial judge with the jury having the least appearance of duress or coercion — Phoenix Insurance Co. v. Moog, 81 Ala. 343, 1 South. 115; De Jarnette v. Cox, 128 Ala. 518, 29 South. 618; Shaw v. State, 79 Miss. 577, 31 South. 209.
In this case we adopt the language which was used by this court in De Jarnette v. Cox, supra, viz: “The fact that a verdict was very soon thereafter rendered, notwithstanding the jury had stated to the court that it was impossible to come to a verdict after an effort of more than a day, we think reasonably and satisfactorily shows that the verdict was not uninfluenced by what the court had said.”
In the instant case we think that the trial judge might have explained to the jury that “an agreement to dis[57]*57agree” was not a verdict, that he would not then discharge them, and that they might return to their rooms and further deliberate upon the case. This course he did not pursue, and we think that the course which he did pursue was calculated to coerce a verdict, and that it probably did so.
A true verdict is the truthful saying of 12 impartial, fair-minded men, who arrive at a conclusion because it is their duty, under the evidence, to do so, and not because they are coerced, whether wittingly or unwittingly, by a trial judge so to do.
, In our opinion the question above discussed is properly presented by this record.
Our rules require a party who reserves an exception to the oral charge, or any part of the oral charge, of a trial judge to a jury, to do so in the presence of the jury and before the jury retires. The reasons for this rule are well known, and need not be here repeated.
In the. instant case the exception was reserved, not to the oral charge or to a part of the oral charge of the trial judge to the jury, but to remarks of the trial judge which were calculated to coerce the jury into a verdict, and which remarks were made by the trial judge after the case had been given in charge to the jury. When, in the instant case, the defendant reserved his exception to those remarks, the jury were in the jury room in the same building with the trial judge; and, if the trial judge had desired to retrace his footsteps and to withdraw the objectionable remarks, he could easily have had the jury brought back before him and have done so. This he did not do, and the verdict followed as we have above stated. If the defendant had waited until after the jury had rendered their verdict, before reserving his exception to this action of the court, such circumstance might afford an argument that the defendant had specu[58]*58lated upon the chances of a verdict in his favor after the remarks were made, and that therefore the objection came too late.
3. We find nothing in the language of this court in Phoenix Insurance Co. v. Moog, supra, indicating that it is essential, in a case like the present, for an exception to be reserved by the party aggrieved at the time the remarks are made and before the jury retire to again resume their deliberations, in order that he may properly reserve such question for review by this court. In that case, as in this, the aggrieved party reserved his exception to the remarks of the trial judge after the jury had retired to the jury room and had resumed their deliberations. In that case this court said that the language of the trial judge “was not excepted to in such form that it can be assigned as error.” If Judge Stone had thought that the exception came too late because not reserved at the time the language was used and in the presence of the jury, he would have said so. On the contrary, we think the learned judge in that case meant that the record showed that there was one exception to three separate portions of the remarks of the trial judge, that said three portions of such remarks were not separately or severally excepted to, and that as some of the portions of the remarks so excepted to were not erroneous, the exception must fall. Moreover, a part of the language excepted to in the case of Phoenix Insurance Co. v. Moog, supra, was an oral instruction of the trial judge to the jury, as to the rules which should govern them in their deliberations in the jury room, and in that case this court held that such instructions as to the manner in which the jurors should conduct themselves during their deliberations were not only not erroneous, but that they were to be approved.
In the instant case the language did not constitute [59]*59an instruction on the law of the case, but constituted a reprimand to the jury.
It therefore seems to us that in the trial of this cause an error was committed, for which the cause should be reversed.
Reversed and remanded.
Dowdell, C. J., and Anderson, Mayfield, Sayre, and Somerville, JJ., concur.