Hill, P. J.
The defendant appeals from a judgment of conviction of robbery in the first degree. There was evidence sufficient to sustain the conviction. Appellant asserts that a new trial should be granted because of two prejudicial incidents. The trial began in the morning of June 3, 1940, the jury being sent out June fifth at five-twenty in the afternoon, the verdict of guilty returned on the following morning at nine-fifty. The appellant and a defendant indicted with him, Anthony Rosano, were being tried together. On the second day of the trial, closely following the evidence given by an alleged co-conspirator of the appellant and Rosano, the attorney for the latter, in the presence of the jury, stated: “ If your Honor please, at this time and on my recommendation, the defendant Rosano wishes to withdraw his plea of not guilty and throw himself upon the mercy of the Court and enter a plea of guilty to the indictment as charged.” Whereupon the usual statement of a convicted criminal was taken and sentence deferred by the court. The attorney for the appellant moved for a mistrial and stated in part: “ I submit that shouldn’t be done in the presence of the jury because it is highly prejudicial and inflammatory here. * * * We have started this trial with both defendants; now the co-defendant offers to take a plea in the pres- • ence of the jury. Your Honor has accepted the plea in the presence of the jury. I submit that a prejudicial atmosphere has now been j created,” to which the court replied, “ I didn’t know that he was ! going to plead until it was all done.” It was then asserted, and not denied, that the district attorney knew in advance of the proposed [659]*659change of plea. The court denied the motion for a mistrial. Rosano was later sworn as a witness for the People. It is argued that no error was committed, that had the change of plea been made outside the court room, his absence from the trial and subsequent testimony would have given them the information. Doubtless the happening in the presence of the jury did create a sentiment unfavorable to the theory of appellant’s innocence.
The second assignment of error is more serious. It has to do with colloquies between counsel, the court and several jurors. The jury had remained in their rooms from five-twenty in the afternoon until three-ten the next morning, when they were brought into court and asked if they had agreed upon a verdict. Juror No. 1 said: “ We have not; we can’t agree. * * * Your Honor, it seems to be an impossibility to reach an agreement.” Juror No. 4: “ It is impossible; if we stayed for a week and a half, it wouldn’t be any different.” The court directed that the jury retire and deliberate a while longer. They were returned again at seven-seven a. m., and, in answer to an inquiry if they had agreed, the following occurred:
“ Juror No. 1: Your Honor, we are still unable to agree upon a verdict and I would ask — The Court: Do you want any instructions? Juror No. 1: I would ask the Court to allow one of the jurors to address you a moment. The Court: All right. Juror No. 11: Your Honor, we have been up there a pretty long time, you will grant us, and I would respectfully ask, that when you are ready to dismiss us, for permission to address you and the District Attorney. The Court: I am not convinced of the impossibility of your agreeing, or the hopelessness of it, and I think I will send you out to breakfast; a little fresh air will do you good. Juror No. 11: Your Honor, it is absolutely useless; I have nothing constructive to offer, and I am quite sure I am speaking for eleven jurors. Juror No. 8: Go ahead and tell him. The Court: Oh, no; you can speak to me right from there. Juror No. 11: We started balloting approximately six o’clock last night; as a matter of fact, there hasn’t been any change in the ratio of the voting for or against the defendant and we have discovered — now this may not be proper —■ The Court: I don’t think it is proper until you are discharged. Mr. McGuiness: Just a minute. The Court: You indicate— Mr. McGuiness: He is trying to give his reasons. The Court: You indicate the ratio of your voting is that you might still agree? Juror No. 11: There isn’t a possibility in the world, Judge. The Court: That is what you think. Juror No. 11: We are sure of that. Juror No. 3: We have done everything up there and we can’t agree, The Court: I have known juries to be out [660]*660much longer than you have and they felt the same as you do at this stage. Juror No. 4: You can’t change a woman’s mind, can you? ”
The court then directed the jury to return to their rooms and discuss the evidence to ascertain if they were not able to reach a verdict. They were returned into court again at nine-ten a. m. when, after juror No. 1 had stated they were unable to agree upon a verdict, the following took place: “ Juror No. 11: Your Honor, Judge, the condition is practically the same as it was the last time we were down here and I am still making the same request that, if and when you see fit to dismiss us, I would like to see both you and the District Attorney to consult with you. Juror No. 4: Personally, Judge, I think we are farther away from this thing than we have been before. We have been on one question sixteen hours and we can’t get one answer to the question. Personally, I think we ought to have a doctor up there to have the party examined. Sixteen hours on one question and we cannot get it answered. Juror No. 11: It might be a mental condition. Juror No. 4: Now there is no end to this thing. The Court: Is it the unanimous opinion of everybody on the jury that it is absolutely hopeless that you will arrive at a verdict by further consideration? Juror No. 4: It is absolutely hopeless. Juror No. 11: Yes. Juror No. 1: Yes. The Court: In other words, you all feel that way about it, do you? Juror No. 8: Yes, Judge. Juror No. 4: Absolutely. Juror No. 11: Absolutely. Mr. Lowenberg: May I move for the discharge of the jury, Judge. The Court: Are you willing that they should be discharged, Mr. McGuiness? Mr. McGuiness: Well, it is a terrible shame and expense to the County, but there doesn’t seem to be anything else for us to do; it is a terrible shame in view of the great sum of money it has cost the County and what it will cost to try it again. The Court: Well, I don’t want to be unreasonable with them. Juror No. 4: There is either one who is crazy or eleven who are crazy. Juror No. 11: We feel we should stay here if by staying here we could decide it, but there is a woman on this jury who has seven children and I myself live in the country and I have a family and these people all have families and they should be taken care of; now we áre perfectly willing to stick here until it is carried out. The Court: If you feel that way about it, why I am willing that you should stick longer; if you feel that way. Juror No. 11: We still feel regardless of the time spent we can’t reach a decision. Juror No. 7: Absolutely impossible. Juror No. 4: Deadlocked; but that doesn’t justify the set up.”
The court then discussed the duty of jurors to be tolerant of arguments and concluded by saying; “ I am going to give you just one [661]*661more chance. Juror No. 4: May I say a word, please? The Court: Yes. Juror No. 4: We have been on this question for sixteen hours and we have tried to get her mind open and we can’t get it open. The Court: You don’t want to watch the clock; you know, only last year, another Court in this building kept a jury out much longer on a less important case. Juror No. 4: We can’t get this party to believe the testimony. I think she is a mental case.
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Hill, P. J.
The defendant appeals from a judgment of conviction of robbery in the first degree. There was evidence sufficient to sustain the conviction. Appellant asserts that a new trial should be granted because of two prejudicial incidents. The trial began in the morning of June 3, 1940, the jury being sent out June fifth at five-twenty in the afternoon, the verdict of guilty returned on the following morning at nine-fifty. The appellant and a defendant indicted with him, Anthony Rosano, were being tried together. On the second day of the trial, closely following the evidence given by an alleged co-conspirator of the appellant and Rosano, the attorney for the latter, in the presence of the jury, stated: “ If your Honor please, at this time and on my recommendation, the defendant Rosano wishes to withdraw his plea of not guilty and throw himself upon the mercy of the Court and enter a plea of guilty to the indictment as charged.” Whereupon the usual statement of a convicted criminal was taken and sentence deferred by the court. The attorney for the appellant moved for a mistrial and stated in part: “ I submit that shouldn’t be done in the presence of the jury because it is highly prejudicial and inflammatory here. * * * We have started this trial with both defendants; now the co-defendant offers to take a plea in the pres- • ence of the jury. Your Honor has accepted the plea in the presence of the jury. I submit that a prejudicial atmosphere has now been j created,” to which the court replied, “ I didn’t know that he was ! going to plead until it was all done.” It was then asserted, and not denied, that the district attorney knew in advance of the proposed [659]*659change of plea. The court denied the motion for a mistrial. Rosano was later sworn as a witness for the People. It is argued that no error was committed, that had the change of plea been made outside the court room, his absence from the trial and subsequent testimony would have given them the information. Doubtless the happening in the presence of the jury did create a sentiment unfavorable to the theory of appellant’s innocence.
The second assignment of error is more serious. It has to do with colloquies between counsel, the court and several jurors. The jury had remained in their rooms from five-twenty in the afternoon until three-ten the next morning, when they were brought into court and asked if they had agreed upon a verdict. Juror No. 1 said: “ We have not; we can’t agree. * * * Your Honor, it seems to be an impossibility to reach an agreement.” Juror No. 4: “ It is impossible; if we stayed for a week and a half, it wouldn’t be any different.” The court directed that the jury retire and deliberate a while longer. They were returned again at seven-seven a. m., and, in answer to an inquiry if they had agreed, the following occurred:
“ Juror No. 1: Your Honor, we are still unable to agree upon a verdict and I would ask — The Court: Do you want any instructions? Juror No. 1: I would ask the Court to allow one of the jurors to address you a moment. The Court: All right. Juror No. 11: Your Honor, we have been up there a pretty long time, you will grant us, and I would respectfully ask, that when you are ready to dismiss us, for permission to address you and the District Attorney. The Court: I am not convinced of the impossibility of your agreeing, or the hopelessness of it, and I think I will send you out to breakfast; a little fresh air will do you good. Juror No. 11: Your Honor, it is absolutely useless; I have nothing constructive to offer, and I am quite sure I am speaking for eleven jurors. Juror No. 8: Go ahead and tell him. The Court: Oh, no; you can speak to me right from there. Juror No. 11: We started balloting approximately six o’clock last night; as a matter of fact, there hasn’t been any change in the ratio of the voting for or against the defendant and we have discovered — now this may not be proper —■ The Court: I don’t think it is proper until you are discharged. Mr. McGuiness: Just a minute. The Court: You indicate— Mr. McGuiness: He is trying to give his reasons. The Court: You indicate the ratio of your voting is that you might still agree? Juror No. 11: There isn’t a possibility in the world, Judge. The Court: That is what you think. Juror No. 11: We are sure of that. Juror No. 3: We have done everything up there and we can’t agree, The Court: I have known juries to be out [660]*660much longer than you have and they felt the same as you do at this stage. Juror No. 4: You can’t change a woman’s mind, can you? ”
The court then directed the jury to return to their rooms and discuss the evidence to ascertain if they were not able to reach a verdict. They were returned into court again at nine-ten a. m. when, after juror No. 1 had stated they were unable to agree upon a verdict, the following took place: “ Juror No. 11: Your Honor, Judge, the condition is practically the same as it was the last time we were down here and I am still making the same request that, if and when you see fit to dismiss us, I would like to see both you and the District Attorney to consult with you. Juror No. 4: Personally, Judge, I think we are farther away from this thing than we have been before. We have been on one question sixteen hours and we can’t get one answer to the question. Personally, I think we ought to have a doctor up there to have the party examined. Sixteen hours on one question and we cannot get it answered. Juror No. 11: It might be a mental condition. Juror No. 4: Now there is no end to this thing. The Court: Is it the unanimous opinion of everybody on the jury that it is absolutely hopeless that you will arrive at a verdict by further consideration? Juror No. 4: It is absolutely hopeless. Juror No. 11: Yes. Juror No. 1: Yes. The Court: In other words, you all feel that way about it, do you? Juror No. 8: Yes, Judge. Juror No. 4: Absolutely. Juror No. 11: Absolutely. Mr. Lowenberg: May I move for the discharge of the jury, Judge. The Court: Are you willing that they should be discharged, Mr. McGuiness? Mr. McGuiness: Well, it is a terrible shame and expense to the County, but there doesn’t seem to be anything else for us to do; it is a terrible shame in view of the great sum of money it has cost the County and what it will cost to try it again. The Court: Well, I don’t want to be unreasonable with them. Juror No. 4: There is either one who is crazy or eleven who are crazy. Juror No. 11: We feel we should stay here if by staying here we could decide it, but there is a woman on this jury who has seven children and I myself live in the country and I have a family and these people all have families and they should be taken care of; now we áre perfectly willing to stick here until it is carried out. The Court: If you feel that way about it, why I am willing that you should stick longer; if you feel that way. Juror No. 11: We still feel regardless of the time spent we can’t reach a decision. Juror No. 7: Absolutely impossible. Juror No. 4: Deadlocked; but that doesn’t justify the set up.”
The court then discussed the duty of jurors to be tolerant of arguments and concluded by saying; “ I am going to give you just one [661]*661more chance. Juror No. 4: May I say a word, please? The Court: Yes. Juror No. 4: We have been on this question for sixteen hours and we have tried to get her mind open and we can’t get it open. The Court: You don’t want to watch the clock; you know, only last year, another Court in this building kept a jury out much longer on a less important case. Juror No. 4: We can’t get this party to believe the testimony. I think she is a mental case. The Court: I am going to give you just one more chance and I am not going to keep you here very long. Juror No. 4: Give us some idea, Judge; about another hour? The Court: Yes; go up and see what you can do now; one more chance. Juror No. 8: She is sick. Juror No. 4: She ought to have a doctor, a doctor; she threw up all over the place up there. Juror No. 5: No, I am not sick.”
The jury retired and twenty minutes later agreed. It is obvious that the jury stood eleven to one; that Juror No. 5, a woman, favored an acquittal.
Chief Judge Parker, writing for the court in People v. Sheldon (156 N. Y. 268), quoting from a Michigan case, said: “ ‘Every attempt to drive men into an agreement which they would not have reached freely is a perversion of justice ’ ” (p. 279), and from Mr. Justice Brewer in a Kansas case, “ ‘ No juror should be induced to agree to a verdict by a fear that a failure to so agree would be regarded by the public as reflecting upon either his intelligence or his integrity.’ ” In People v. Faber (199 N. Y. 256) the opinion cites many of the cases mentioned in People v. Sheldon (supra) and states the following: “ It must not be overlooked that jurymen act as individuals and they must decide a case upon their own opinion and their own judgment and not merely acquiesce in the conclusions of others.”
Here, the length of time which the jury was required to deliberate was not unreasonable. Nothing which the judge said is subject to criticism, but his omission to prevent the coercion, or to negative the threats obviously directed at the woman juror No. 5, was error. The request by juror No. 11, both at the seven-seven and the nine-ten interviews with the court that when the jury was finally discharged he desired to have opportunity to talk with the court and the district attorney, coupled with the other remarks, carried a sinister suggestion as to the conduct of the non-agreeing juror, as did the statements that she was crazy, a mental case, and required a doctor. All these statements made in a public court room were coercive and tended to lead the juror to consider her personal safety and reputation instead of giving attention to the issues which she was to assist in deciding. It would have been improper for the district attorney in his summation to have said that a failure to agree would be “ a terrible shame and expense to the [662]*662County;” that a disagreement would be “ a terrible shame in view of the great sum of money it has cost the County and what it will cost to try it again,” and it was equally so at the time it was said. It is no answer that all of the offending remarks, except that by the prosecutor, were by jurors. They were made at a session of the court, whereat the county judge was presiding and it was his duty to prevent others from threatening or attacking the minority juror, to rebuke those who made the remarks quoted, and to restate the rules as to the rights and duties of individual jurors.
The defendant did not have a fair and impartial trial, and the judgment of conviction should be reversed on the law, and a new trial ordered.
Crapseb and Heffernan, JJ., concur, Heffernan, J., in a separate, memorandum; Foster, J., dissents in a memorandum, in which Schenck, J., concurs.