ON PETITION FOR A WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.
Taft, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, Stone
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
The question here for review is the judgment of the Third Circuit Court of Appeals, of February 14, 1927.
A petition for certiorari was filed in this Court February 28, 1927, and is this day granted. For reasons to be explained, we proceed at once to consider the case on its merits.
Shields, the petitioner, was indicted and tried with eight or nine others for conspiracy to violate the Prohibition Act, and also for direct violations of the Act. He was convicted of conspiracy and acquitted of the other charges. The case had been submitted to the jury, February 12, 1926. Before the court convened the next morning, the jury still being out, counsel for the defendants and the Assistant United States Attorney in charge of the prosecution visited the trial judge in chambers and requested that the jury be held in deliberation until they should agree upon a verdict. Shortly after the opening of the court, the jury returned for additional instructions on the subject of entrapment, and having received the same, retired for further deliberation. At 2.30 o'clock that afternoon, the jury again returned to court, in the absence of petitioner and his counsel, and reported that they could not agree. What instructions, if any, were then given the jury the record does not disclose. It appears that the jury again retired to deliberate, and between 4.30 and 5.00 o'clock in the afternoon sent from their jury room to the judge in chambers the following written communication:
"We, the jury, find the defendants John G. Emmerling, Charles Lynch not guilty on all counts, E. W. Hardison, J. E. Hunter and J. L. Simler guilty on all counts. Daniel J. Shields, Harry Widman, J. M. Gastman unable to agree. Signed, E. B. MILLIGAN,
The judge from his chambers sent back the following written reply:
"The jury will have to find also whether Shields, Widman and Gastman are guilty or not guilty.