#### Woody L. COLEMAN v. STATE of Mississippi.

No. 49851.

Supreme Court of Mississippi.

Sept. 28, 1977.

*56Aubrey M. Childre, Pearl, for appellant.

A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.

BOWLING, Justice,

for the Court:

Appellant was convicted of rape in the Circuit Court of Rankin County and sentenced to serve a term of thirty years under the jurisdiction of the Department of Corrections. He appeals, alleging several assignments of error. We shall discuss only two. No purpose would be served in discussing the evidence except as it relates to these two assignments of error.

The jury had retired to consider its verdict. According to the record, “after a period of deliberation,” the circuit judge had the jury brought to the courtroom and gave the following additional charge, to wit:

> This is an important case. If you should fail to reach a decision, the case is left open and undecided: Like all cases, it must be decided sometime. Another trial would be a heavy burden on both sides. There is no reason to believe that the case can be tried again any better or more exhaustively than it has been. There is no reason to believe that more evidence or clearer evidence would be produced on behalf of either side.

> Also, there is no reason to believe that the case would ever be submitted to twelve people more intelligent or more impartial or more reasonable than you. Any future jury must be selected in the same manner that you were.

> These matters are mentioned now because some of them may not have been in your thoughts.

> This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.

> This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. *57If at all possible, you should resolve any differences and come to a common conclusion so that this cause may be completed.

> You may be leisurely in your deliberations as the occasion may require and take all the time you feel necessary. The giving of this instruction at this time in no way means it is more important than any other instruction. On the contrary, you should consider this instruction together with and as a part of the instructions which I previously gave you. You may now retire and continue your deliberations in such manner as may be determined by your good judgment as reasonable people.

After this charge was given, the jury was returned to the jury room. The attorney for the defendant then dictated a motion into the record requesting a mistrial because of this additional instruction, stating that it was a form of the “Allen” instruction which put pressure on the jury to compromise and return a verdict. In overruling the motion, the Court said: “The motion is overruled. The Mississippi Supreme Court having expressly approved the giving of the Allen charge.”

The lower court was in error in its opinion of the law as quoted above, and erroneously gave the version of the now infamous “Allen” charge. In the case of *Sharplin v. State,*330 So.2d 591 (April 20, 1976), this Court, in condemning the giving of the “Allen” charge in any form, stated: “Following publication of this opinion, the ‘Allen charge’ in any of its various forms should not be given.”

This opinion was published on May 27, 1976. The trial of appellant was had on July 28,1976, two months after the publication of the *Sharplin*opinion quoted above. This made the charge given to the jury obviously erroneous and constitutes reversible error.

One other assignment of error needs to be discussed. The incident resulting in the indictment occurred on March 21, 1976. The State introduced a physician as one of its witnesses who testified that on May 24, 1976 (approximately two months after the incident) he examined the young alleged victim of the crime. He found that her hymen was torn in an irregular manner and that the tear was well healed. He further testified that he could not tell from his examination at that time how long before the examination this tear had occurred. He estimated that it could have been as far back as eighteen months prior to the examination.

On cross-examination of the alleged victim of the crime, the attorney for appellant attempted to elicit from her whether anything “like this” had happened earlier. The State’s objection to this cross-examination was sustained. We are of the opinion that this was error. Although the testimony of the alleged victim was prior to that of the physician, it is recognized in the trial of criminal cases, particularly in recent times, that the evidence held by the State is generally known prior to the trial. We assume that this was the reason appellant’s attorney made an effort to elicit the information from the young alleged victim. Of course, it would have been a better procedure for appellant’s attorney to have made a more complete record of this attempt either by placing a clear statement of his intentions in the record or by witnesses who would justify introducing the evidence requested. This is a close question under the record before us, but considering all the evidence we are of the opinion that appellant’s attorney should have been permitted to elicit the information sought from the alleged victim.

The cause, therefore, is reversed and remanded for a trial before another jury.

REVERSED AND REMANDED.

PATTERSON, C. J., INZER, P. J., and SUGG and WALKER, JJ., concur.

SMITH, P. J., and ROBERTSON, BROOM and LEE, JJ., dissent.

SMITH, Presiding Justice,

dissenting:

I respectfully dissent from the conclusions reached by the majority. I agree that the charge as given violated restrictions as *58set up in *Sharplin*v. *State,*330 So.2d 591 (Miss.1976), and although it did not reach the prejudicial proportions of the so-called *Allen*Charge, would have constituted reversible error if the question had been properly preserved. While by no means as strong as the famous or infamous *Allen*Charge, by inescapable inference it placed undue emphasis upon the supposed duty of the minority to think long and hard before clinging to its views in the face of contrary views held by the majority. However, no objection was interposed to the giving of the charge and a motion *for*a mistrial was not made until after it had been given in its entirety and the jury had returned to its deliberations.

The trial court was, of course, mistaken in stating that this Court had approved the giving of the *Allen*Charge. On the contrary, the giving of charges of this nature has been condemned and strictly limited by this Court. *Sharplin,*supra.

The giving of any charge to a “hung jury” which even by inference suggests that conscientious convictions of any juror should yield to the views of others in order that a unanimous verdict may be reached is a delicate and hazardous undertaking if it goes beyond “please retire and continue your deliberations.”

When it became apparent that the court would further instruct the jury at this juncture, it was incumbent upon counsel immediately to take some affirmative action to prevent the giving of any charge until he had been afforded an opportunity to know what it would be, and this is so even if it meant interrupting the court. If done, as it should and can be done, courteously and with deference, this will result in no prejudice nor in any contretemps whatever. Counsel should request at the earliest moment in such circumstances a copy of the instruction and a hearing in chambers as to its propriety. If a hearing is granted, as it almost certainly would be, counsel must then interpose such objections as he may deem appropriate. If, in the unlikely event that the court should refuse to disclose to counsel the nature of the proposed instruction, when so requested or to grant him an opportunity to object to it, the record will reflect counsel’s requests and the trial court’s action in denying them and a motion for a mistrial will then not be too late if counsel’s objections shown by the record should prove to be well taken. In this case, counsel allowed the charge to be given in its entirety without demur, and took no affirmative action of any kind to prevent it. In my view it was too late to base a motion for a mistrial upon the trial court’s action in giving the instruction under such circumstances.

The second ground upon which the majority has based reversal of the conviction is that the court improperly denied counsel the right to cross-examine the victim as to whether she had experienced any previous sexual encounter. This was to show that the torn hymen, disclosed by the medical examination, might not have occurred as the result of an assault by appellant. In view of the delay which had transpired before the assault was reported by the victim, and the long delay before the medical examination and discovery of the torn hymen, I would agree that this would have constituted reversible error if there were any support in the record for the suggestion of a previous sexual incident. However, the question was asked, the objection sustained, and nothing further was done. There was no offer of proof nor any request to be allowed to make a record by examining the witness on the point outside the hearing of the jury. Nor was anything offered on the motion for a new trial to indicate that if the witness had been required to answer she would have admitted a previous incident as the result of which the hymen might have been torn. In the final analysis, there is nothing in the record reflecting, or even capable of supporting an inference, that the answer of the witness would have disclosed a previous sexual experience of any kind. There is no reasonable basis appearing in the record for expecting that, upon retrial, there will be any evidence, from the victim or anyone else, supporting what is, after all, a mere speculation that the victim has had previous sexual experience.

*59It is certainly conceivable that when the victim is asked the question on retrial she will answer no, that she has had no previous sexual experience. It is also conceivable that the defense will not be able to offer any evidence to show that her statement to that effect is false. This seems to me to be quite likely since no evidence as to previous sexual experience was offered at the former trial and I think this must be regarded as indicating, to some extent, that there was not any. In such an event, the reversal and retrial of the case because of the sustaining of the objection to the question would have resulted in a complete futility.

I agree that there are some aspects of the case which, when viewed from the whole record, do not appear wholly satisfactory. These principally consist of the delay in the report of the incident by the victim, the delay in the medical examination, and in the doctor’s indefinite opinion that he was unable to fix the time of the injury to the hymen more definitely than that it had occurred at some time within the past 18 months. On retrial, it is hoped, the facts and circumstances will be more fully explored.

ROBERTSON, BROOM and LEE, JJ., join in this dissent.