¶1(dissenting.) — The entire recitals of the bill of exceptions touching the deliberations of the jury, their return into court, and the response of the court to the paper handed the clerk as a verdict are these: “The jury in this cause was charged by the court, and retired to consider the testimony. They retired to the jury room about 8 o’clock p. m. of October 1, 1912, where they continued in their deliberations until 11 o’clock p. m. of the same day. They were then taken by the sheriff or his deputy to the room prepared for them in the residence portion of the county jail, where they were cared for and kept together during the rest of the night. About 7 o’clock a. m. of Oct. 2,1912, they again returned to the jury room in the courthouse, where they again resumed their deliberations. After continuing the deliberations until about 11 o’clock a. m. of said day, they returned to the courtroom, and in open court they handed to the clerk of said court the following written statement, and in response to the following question of the presiding judge: ‘Gentlemen, have you reached a verdict?’, answered in the affirmative, when the clerk of the court under the direction of the court, read what they had returned into the court as their verdict, which was as follows: ‘We, the jury, agree to disagree.’ Whereupon the court promptly said: ‘Gentlemen, re*60turn to your room and. resume your deliberations, and don’t come back any more with anything like that. While I am sure you did not mean it, yet such is absolutely in contempt of court.’ The jury returned immediately and promptly into the jury room, and after the jury had retired to the jury room .to resume their deliberations counsel for the defendant excepted to the said remarks of the court to the jury and to each portion thereof. After counsel made such objections and exceptions the court did not make any further státement or remark to the jury explaining his words, and the jury again continued their deliberations, or stayed out, for a period of about one hour, when they again returned to the court with the following verdict: ‘We, the jury, find the defendant guilty of murder in the first degree and fix the penalty at death.’ Whereupon the court adjudged the defendant guilty of murder in the first degree, and on October 5, 1912, sentenced the defendant to be privately hung.”
¶2The bill of exceptions does not contain any reference to or recital of the evidence upon the issue of guilt vel non of the accused. For aught that appears the evidence was such as to admit of little, if any, fair doubt of his guilt. In this state of the bill, the reviewing court should be at least cautious in imputing prejudicial misconduct to a court in a case of this kind. — Fairgrieve v. Moberly, 29 Mo. App. 141, 150.
¶3In order to find error as for misconduct of the presiding judge in respect of his remarks to the jury, it is manifestly necessary to affirm that the jury reported to the court a disagreement, an inability to reach a verdict. To so conclude is an immediate contraction of what the jury, in writing, reported, viz., that the jury had agreed to disagree. Of course the report made by the jury was not a verdict, notwithstanding it was formally, *61expressly avowed that the jury had agreed. This agreement — this accord — was to disagree upon the issues submitted to the jury. A verdict is “the unanimous decision made by a jury and reported to the court, on the matters lawfully submitted to them in the course of the trial of a cause.” — Bouvier. According to this accepted definition of a verdict, the affirmation by the presiding judge that the paper returned by the jury was not a verdict was consistent with obvious truth. Certainly the judge violated no rule of propriety or of law in thus justly, and within the scope of his undoubted powers, interpreting the paper -and in announcing to the jury that their return was not a verdict. Patently, neither error nor impropriety could be soundly predicated of this declaration to the jury.
¶4There are but two alternatives open to a jury to which a cause is submitted, viz., one to agree upon and return a verdict, as defined ante; and the other to report a disagreement, an inability to agree on a verdict. The court must not in any manner threaten or intimidate the jury in order to affect their deliberations, and should avoid in every way the least appearance of duress or coercion. — De Jarnette v. Cox, 128 Ala. 518, 423, 29 South. 618. The duration of the deliberations by the jury is committed to the sound discretion of the court; and the exercise of that discretion, in a given case, will not be disturbed on appeal except for a clearly shown abuse thereof. — Buntin v. Danville, 93 Va. 200, 212, 24 S. E. 830.
¶5“All who are familiar with jury trials know that juries are prone to report to the court their inability to agree, but, not being discharged, often render a verdict in a reasonable time thereafter. Accordingly, it is the duty of the court to keep the jurors together until it is satisfied that they have made an honest effort to agree, *62and that their inability to do so is due to a conscientious difference of judgment. How long the jury should be kept together, before discharging them for inability to agree on a verdict, is a matter depending upon the circumstances of each case, and resting in the sound discretion of the court, which discretion will not be interfered with by a reviewing court except on a clear showing of abuse.” — 38 Cyc. pp. 1855, 1856.
¶6Even where the jury has reported its inability to agree upon a verdict, the court may, in the exercise of a sound discretion, order further consideration by the jury, and, avoiding any appearance of duress or coercion, advise .the jury of the desirability that a verdict be made, that, if practicable, a conclusion of the litigation may be attained, and that they cultivate a spirit of harmony. — Phoenix Insurance Co. v. Moog, 81 Ala. 342 et seq., 1 South. 108; 38 Cyc. pp. 1853, 1854.
¶7It is obvious from the recitals of the bill of exceptions that the discretion reposed by law in the trial court was not abused in respect of the duration of the deliberations required of this jury.
¶8The prevailing opinion is that the remarks of the presiding judge were improper, and calculated to affect the deliberations of the jury, and the fact that such was the effect upon the jury seems to be found by the majority, as upon the circumstance that the jury, in an hour, returned a verdict. Before attaining the last-stated conclusion of fact, prevailing with the majority, consideration should have been given the quite common experience of those familiar with jury trials which the editors of Cyc. in the first part of the paragraph quoted above, drew from the excellent opinion of the Virginia court in Buntin v. Danville, supra.To affirm that the verdict later returned was the product or result, in any degree, of the remarks of this judge, when no part of the evi*63dence of guilt submitted to tbe jury is made available .to the judgment of this court is, it seems to me, a clear assumption that really amounts to a presumption of error by a reviewing court, contrary to the universal rule that on appeal error is never presumed. It is significant that not even the character or tendencies, much less the measure, of the evidence on the issue of guilt vel non is made available here on the review of a matter calling pointedly, peculiarly, for the state of the evidence in that connection. If the evidence of guilt was reasonably clear and satisfactory, surely the fact that the jury, after having an agreement to disagree, and after having been directed by the court to resume their deliberations on the case, returned a verdict of guilt within “about an hour” does not invite or justify the presumption that the jury made the verdict in response to anything the court there said. On the contrary, rectitude and honest observance of oath-emphasized duty require a presumption favorable to an untarnished, uncoerced verdict.
¶9It is the duty of a court to exact of all respect for- its dignity, to enforce a due decorum toward it, and to firmly command and compel obedience to its orders and 'judgments. Jurors are not excepted from the control of this indispensable power. In Code, § 4631, it is written: “Every court has power … - * (3) to compel obedience to its judgments, orders and process, … (4) to control, in furtherance of justice, the conduct of its officers, and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto.”
¶10And, because essential to orderly administration of the law, as well as consonant with the powers mentioned, it is established that a jury is bound to obey the instructions of the court given to it. — Marcus v. State, 89 Ala. 23, 8 South. 155; Fleming v. L. & N. R. R. Co., *64148 Ala. 527, 41 South. 683; Wolf v. Delage, 150 Ala. 445, 43 South. 856.
¶11It appears from the bill that the jury was “charged by the court.” The contrary not being shown by the bill, it is to be presumed that the jury were aware, or were made aware, of their duty in the premises. The paper they handed the clerk was an affront to the court. Its words expressed an idea wholly inconsistent with due respect for the court. It was, as the court said to the jury, a manifestation of contempt for the tribunal. The jury was commissioned to decide the issues of fact. They return and say to the court: “We have agreed to disagree It cannot be soundly ruled, as it has not been ruled, that the court was without power or right to reprimand the jury thus affirmatively expressing its disrespect for the court. Did the court, in what it said, exceed the limits of a proper response to this action of the jury? With obvious correctness the court declared the paper to be no verdict, and that the action of the jury was contemptuous. Well within its power, it directed further deliberation by the jury. So’ the evidence of misconduct by the court must be found, if at all, in the statement, “and do not come back any more with anything like that.”
¶12If it is assumed (for the occasion only) that the remarks of the presiding judge are susceptible of two interpretations — one of which will conclude to error and the other against error — it has long been established that bills of exceptions are to be construed most strongly against the party excepting, and the appellate court will adopt that supporting the judgment. — McGehee’s Case, 52 Ala. 224; Dickens’ Case, 142 Ala. 49, 39 South. 14, 110 Am. St. Rep. 17; Dowling’s Case, 151 Ala. 131, 44 South. 403. No reason appears for not observing this rule in this instance; for certainly the court was *65justified iu commanding tfie jury not to again return for a verdict an agreement to disagree.
¶13But aside from this, fiy no possible interpretation of tfie remarks of tfie judge can it be said tfiat fie told tfie jury tfiat tfiey should not or could not report to tfiat court a disagreement on the issioes submitted to them. He did command the jury not to again report anything like tfiat, viz., an agreement to disagree. In what other words could tfie court have couched this authorized command? In what different form could tfie court have expressed its plain duty in response to an affront to tfie dignity of tfie court? It is not to be supposed tfiat a jury, capable of framing such a satire upon its function and tfiat of tfie court as this jury did, were so obtuse as to misunderstand so plain and simple a statement as tfie court made. Manifestly tfie court was under no duty to anticipate tfie perversion of tfie plain meaning-borne by the words used. If trial courts are to be field to such a duty, a departure will be wrought from an universally accepted rule tfiat tfie words used in utterances, by courts, to juries “must be taken in their ordinary and popular acceptation, and will not be subjected to analytical criticism. Tfiey will be construed according to their essential meaning, and refined distinctions will not be indulged in.” — 38 Cyc. p. 1777.
¶14In my opinion tfie presiding judge was guilty of no misconduct whatever in tfie premises.
¶15Moreover, as appears from tfie bill, tfie exception “to tfie said remarks of tfie court” was attempted to be taken after the jury retwed. In order to avail to present tfie matter for review on appeal, tfie exception should have been taken before the jury retired from tfie presence of tfie court. — City Council, etc., v. Gilmer, 33 Ala. 116, 133, 134, 70 Am. Dec. 562; Tyree v. Parham, 66 Ala. 424, 432; Hayes v. Solomon, 90 Ala. 520, 522, *667 South. 921; Reynolds v. State, 68 Ala. 502, 507; Moore v. State, 40 South. 345, 346; Phoenix Ins. Co. v. Moog, 81 Ala. 335, 342-344, 1 South. 108; Earp v. Stephens, 1 Ala. App. 447, 55 South. 266; Tice v. State, 3 Ala. App. 164, 167, 57 South. 506. The reason underlying the rule is obvious, and was sufficiently stated in the first decision cited above.
¶16The case of Phoenix Ins. Co. v. Moog, supra,is in immediate point. The prevailing opinion necessarily conflicts with that' in the Moog Gase, supra. The effort is made in the prevailing opinion to distinguish the Moog Gase from that under review. The transcript in the Moog Gase has been consulted by the writer, and the transcript confirms the truth of the sixth headnote, which reads: “6. Same — Exception—-When Too Late. It is too late to except to such instructions after the jury have again retired.”
¶17On page 342 of 81 Ala., on page 108 of 1 South., in the body of the opinion, appears an accurate restatement and quotation from the bill of exceptions on this point. It need not be repeated here. Following what appears at the page, note the bill of exceptions recites (quoting it) : “After the jury had retired to their room, the defendant, by its counsel, excepted to so much of the said statement of the court to the jury as stated to them that it was the duty of the jurors to cultivate a spirit of harmony, and to arrive at a verdict if they could; also, to so much of said statement as told the jury what had occurred on previous trial of the cause; also to so much of the said statement as told the jury that it was the impression of the court that it would have to keep them together until the end of the term unless, before that time, they agreed upon a verdict. And the said defendant, by its counsel, now excepts to so much of said statement to said jury as is above stat*67ed and set down, and to each portion of the same as so excepted to, and asks that this may be signed and sealed as a bill of exceptions in the cause. … It is hence too evident for doubt that this court ruled, as the sixth headnote states, that the exception was too late after the jury again retired and that the remarks of the trial court were taken and considered as instructions to the jury. Clearly the attempted exceptions to the remarks of the court were beyond criticism on any other ground.
¶18The language of the court in the Moog Gase was very pointed, emphatic, and strong in its quality of urging the return of a verdict by the jury. But, notwithstanding, this court consistently applied the long-established rule announced in the Gilmer Gase, supra. If the words used in the Moog Gase were, as there held, instructions, then surely the like conclusion should have prevailed in the case at bar. There was not in the Moog Case the remotest allusion to the law of the case. The whole tenor and effect of the remarks was to promote a verdict and avert a mistrial.
¶19In my opinion an affirmance should be entered.