# Berness v. State > Supreme Court of Alabama · June 16, 1955 · 263 Ala. 641 URL: https://www.frixlaw.com/law-library/cases/9676757 ## Case - **Full name:** Francis Louis BERNESS v. STATE - **Court:** Supreme Court of Alabama - **Decided:** June 16, 1955 - **Citations:** 263 Ala. 641; 83 So. 2d 613; 1955 Ala. LEXIS 708 - **Precedential status:** Published - **Opinion:** On rehearing by Mayfield - **Judges:** Goodwyn, Lawson, Livingston, Mayfield, Merrill, Simpson, Stakely - **Cited by:** 39 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9676757 ## Opinion text On Rehearing. MAYFIELD, Justice. The State’s application for rehearing is based on the following contentions: " ' “1. A communication between the trial judge and two or three jurors on the street during the noon recess is not a part of the trial. “2. In every other jurisdiction * * situations of this kind have been treated as extrajudicial communication with the juror, and have been decided under the prevailing rule in those jurisdictions pertaining to such communication.” In seeking a definition of the word “trial” by our Alabama courts, we are cited to the cases of Hirshfelder v. State, 19 Ala. 534, 539 ; Byers v. State, 105 Ala. 31 , 16 So. 716 ; Denson v. Caddell, 201 Ala. 194 , 77 So. 720 ; Lee v. State, 31 Ala.App. 91 , 13 So.2d 583 . The State contends that these cases are authority for the proposition that a recess or any occurrence during the recess thereof, outside of the court house, is not a part of the “trial”. We have carefully considered these cases and do not consider them authority directly, or by inference, for the proposition for which they were advanced. The State further cites the cases of State v. Neal, 350 Mo. 1002 , 169 S.W.2d 686, 693 ; and State v. Spotted Hawk, 22 Mont. 33 , 55 P. 1026, 1028 . These cases are not applicable to the situation in the case at bar. The first case dealt with the defendant’s absence from the court room during a motion to quash an information, and the second case dealt with defendant’s absence during an argument on a demurrer to an information. In a criminal cause, the term “trial” does not include the arraignment or other merely preparatory proceeding which may be taken prior to the time of the administering of the requisite oath to the jurors. Byers v. State, 105 Ala. 31 , 16 So. 716 , 717, supra; Hunnel v. State, 86 Ind. 431, 434 ; McCall v. United States, 1 Dak. 320 , 46 N.W. 608 , 611; United States v. Curtis, 25 Fed.Cas. pages 726, 727, No. 14,905; Commonwealth v. Soderquest, 183 Mass. 199 , 66 N.E. 801, 802 . The word “trial” when used in connection with criminal proceedings means proceedings in open court, after pleadings are finished, down to and including rendition of the verdict. Rosebud County v. Flinn, 109 Mont. 537 , 98 P.2d 330, 333 . Therefore, the Neal Case and the Spotted Hawk Case, supra, are not precedent for the present situation. We cannot agree with the validity of the State’s argument to the effect that as he court had declared a short recess, the “trial” was not then in progress so as to require the presence of the defendant at the time additional admonitions and instructions were given to some members of the jury by the presiding judge. It is necessary for the orderly administration of justice that the trial court have disciplinary power over the jurors, the parties, and officers of the court, continuously from the beginning of the trial to the final return of the verdict. The manner in which the trial court exercises this discipline, is a matter of supreme interest to the defendant. Unless he voluntarily absents- himself, he and his counsel, if reasonably available have a. right to be pres *647 ent at every exchange between the judge and jury, where the conversation is germane to any important incident of the trial. The State next contends that the instructions and admonitions which the distinguished trial judge gave the offending jurors was “an extrajudicial communication between judge and jury”. On the contrary, the inquiry conducted by the judge among the offending jurors outside the court house went to the very heart and essence of the validity of the trial. The judge’s investigation was directed to the question of whether or not some members of the jury had disregarded his instructions and admonitions just prior to the noon recess by having improper communication with a distant relative of the deceased girl during the course of the trial. As laudable as were the motives of the trial court, the admonitions and additional instructions which he gave these jurors outside of the court house, were an important incident of the trial. This being true, it required the defendant’s presence and the presence of his counsel, if reasonably available. The judge undoubtedly realized that unless he took immediate and summary action to see that his prior instructions were carried out by the jurors, he would have to declare a mistrial. Beyond peradventure, that was the reason that he did not recall the jury in the presence of the defendant. Nevertheless, had the defendant and his counsel been present at the time the judge investigated this misconduct on the part of the jurors, they may well have deemed it advisable to request the trial judge to press the investigation further or give additional instructions or admonishments to the recalcitrant jurors. Had they been present, the defense may well have deemed the misconduct of the jurors sufficient basis for a motion for a mistrial. The defendant did not learn of the exact nature of the judge’s finding until he dictated a statement into the record on motion for new trial. We cannot, therefore, say that this was error without injury. We believe the motion for a new trial should have been granted. All contact between an impaneled jury, counsel for the parties, and other officers of the court, which does not occur in open court, should be avoided. However, we do> not wish to be understood as saying that where there are normal exchanges of conversation between officers of the court, or others not connected with the trial or an) important incident of the trial, that such conversations can be made the predicate for error. Opinion modified and extended; application for rehearing overruled. LIVINGSTON, C. J., and SIMPSON and STAKELY, JJ., concur. LAWSON, GOODWYN and MERRILL, JJ., dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9676757. Public record. Not legal advice.