Opinion
No. 38781.
June 8, 1953.
1. Trial — juries — oral communication by trial judge — effect of.
During the deliberations of the jury in a criminal case, a juror requested the bailiff to inquire of the trial judge what would be the penalty in case of conviction, and the information given by the judge in response to the question was that one penalty would be a penitentiary sentence and the other a sentence to jail, and the response was communicated to the jury by the bailiff: Held, that reversible error was committed even if the judge did not know that the information was going to be relayed to the jury.
Headnote as approved by Roberds, P.J.
APPEAL from the circuit court of Scott County; W.E. McINTYRE, SR., Judge.
Frank F. Mize and Howard B. McCrory, Forest, for appellant.
I. The trial judge erred in orally instructing the jury through the bailiff, W.C. Pryor. Chadwick v. Bush, et al., 163 So. 823; Dement v. Summer, 165 So. 791; Wilkerson v. State, 78 Miss. 456; Flint Horn v. State, 62 So.2d 560; Green v. State, 97 Miss. 834, 53 So. 415; Shaw v. State, 79 Miss. 577, 31 So. 209; Lewis v. State, 109 Miss. 586, 69 So. 785; Allen v. State, 172 Miss. 472, 159 So. 533; Grimsley v. State, 212 Miss. 229, 54 So.2d 277; Cothern v. State, 63 So.2d 820; Williams v. State, 32 Miss. 389, 66 Am. Dec. 615; Edwards v. State, 47 Miss. 581; Stewart v. State, 50 Miss. 587; Watkins v. State, 60 Miss. 323; Gilvert v. State, 78 Miss. 300, 29 So. 477; Westbrook v. State, 174 Miss. 52, 163 So. 838.
Joe T. Patterson, Assistant Attorney General, Jackson, for appellee.
I. In the light of this whole record, it cannot be said that the action of the trial judge resulted in a miscarriage of justice. It would be difficult to see how the jury arrived at any other verdict than that rendered herein. Blakeley v. State, 165 Miss. 503, 144 So. 864; Buggs v. State, 58 So.2d 791; Clanton v. State, 49 So.2d 267; Fortenberry v. State, 56 So.2d 56; Garvin v. State, 207 Miss. 751, 43 So.2d 209; Phillips v. State, 43 So.2d 208; Pitts v. State, 211 Miss. 268, 51 So.2d 448; Rule 11, Mississippi Supreme Court.
Ware was convicted of assault and battery with intent to kill Robert Patrick.
On this appeal he contends the testimony is insufficient to support conviction of any crime and that his request for a peremptory instruction was wrongfully refused. The proof of the State established a deliberate, malicious assault by shooting Patrick with a shotgun, loaded with number six shot, with the intent to kill him, at a time when Ware was in no real or apparent danger of bodily harm at the hands of Patrick. There is no merit whatever in this contention.
Complaint is made of certain remarks made by the county attorney in the opening argument to the jury. We do not pass upon the contention, because the case is being reversed for reasons hereinafter shown and the question may not arise on another trial.
During the deliberation of the jurors one of them called the bailiff to the door of the jury room and asked him to contact the trial judge and ascertain the punishment which would be imposed in event of a conviction in this case. The bailiff did that. He testified the judge said, "One will carry a penitentiary sentence, and the other a jail sentence." He reported that to the jury then in the jury room. The trial judge made this statement into the record: "The witness Prior asked the court what would be the penalties under a conviction and the instructions of the court. The court said one would be a felony and would be a penitentiary offense, and the other would be a misdemeanor and could carry a jail sentence, or fine, or either. I have no information as to what became of this information as given to Mr. Prior."
(Hn 1) That is reversible error whether the able trial judge knew the information was going to be relayed to the jury or not. Wilkerson v. State, 78 Miss. 356, 29 So. 170; Horn v. State, 216 Miss. 439, 62 So.2d 560; Cothern v. State, 217 Miss. 146, 63 So.2d 820. The writer perceives no grave danger to the administration of justice if the jurors do know the maximum and minimum penalty prescribed for the crime for which accused is being tried, but the adjudicated cases in this State hold otherwise. They are collected in the Horn and Cothern cases, supra.
Reversed and remanded.
Kyle, Holmes, Ethridge and Lotterhos, JJ., concur.