The opinion
Mr. Justice Bristow, dissenting:
I am forced to dissent in this case because the majority opinion lends support to a decision (People v. Brothers, 347 Ill. 530 ,) which this court should overrule. On page 547 of the opinion in the Brothers case the court made the following pronouncement: “In each of these cases the conduct of the judge was calculated to influence the deliberation of the jury and therefore constituted reversible error, but no case is cited, and, indeed, we have not been able to find one, where this court has reversed a judgment because of an act or ruling of a judge which did not tend to influence the verdict of a jury.” The cases referred to in the opinion were the following: Crabtree v. Hagenbaugh, 23 Ill. 289 ; Chicago and Alton Railroad Co. v. Robbins, 159 Ill. 598 ; City of Mound City v. Mason, 262 Ill. 392 ; People v. Beck, 305 Ill. 593 ; People v. McGrane, 336 Ill. 404 . An analysis of those cases shows conclusively that the court misunderstood or misinterpreted their holdings on the question under consideration.
In Crabtree v. Hagenbaugh, 23 Ill. 289 , after the jurors had retired to consider their verdict in a civil suit they sent for the judge, who repaired to their room and there had intercourse with them on the subject of the instructions which had been given them. In reversing a judgment the court said (289) : “In this case, after the jury had retired to consider of their verdict, they sent for the judge, who repaired to their room, and there had intercourse with them on the subject of the instructions which had been given them. This was manifestly done with no improper motive on the part of the judge, and it may be that it had no influence with them in the formation of their verdict. Indeed, the most the judge did, was to decline to explain the meaning of the written instructions which had been given to the jury. We choose to assume, that what was said and done by the judge, while in the jury room, did not influence the jury in their deliberations, for we think that, independent of its effect upon the jury, the judgment should be reversed, for the simple reason that such an interview did take place. If, in this case, no harm was actually done, and for that reason the verdict is allowed to stand, we open the door to the inquiry in all such cases, as to whether the party had been injured by the interview. Such an inquiry should not be tolerated. The policy of the law requires, that all the proceedings of the court should be open and notorious, and in the presence of the party, so that if he is not satisfied with it, he may take exceptions to it, in the mode pointed out by the law, and not be put to extraneous proof to show that an error has been committed in a secret proceeding, and, in fact, out of court.”
In Chicago and Alton Railroad Co. v. Robbins, 159 Ill. 598 , in a civil suit, after the jury retired to consider its verdict it sent a written communication to the judge inquiring, if the jury should find for the plaintiff, whether the damages should be assessed up to the commencement of suit or up to the present time. This inquiry was brought to the judge by the bailiff and the court wrote thereon and sent the same back by the bailiff, “Up to the present time.” This was done while the court was in session but after counsel on both sides had retired from the court, and while neither of said counsel were present in court. There was a judgment in favor of the plaintiff and the Supreme Court said that the proposition of law embodied in the direction of the court, when applied to the facts of the case in hand, was not erroneous, but reversed the judgment solely on the action of the court in sending the memorandum to the jury. In doing so they discussed Sargent v. Roberts, 1 Pick, 337 (Mass.), and also O’Connor v. Guthrie & Jordan, 11 Iowa, 80 , both of which cases held that, regardless of prejudice, such communication was not permissible, and approved a statement in the Iowa case (601) : “Indeed, the necessity for adhering to this practice with strictness is so manifest that argument in support of it is quite unnecessary. It may, at times, it is true, be attended with inconvenience; but better so than permit a practice so liable to abuse and so much in conflict with the rights of parties litigant.”
The court then said that the decisions of this court are of like import and cited Crabtree v. Hagenbaugh, 23 Ill. 289 , and Fisher v. People, 23 Ill. 218 .
In City of Mound City v. Mason, 262 Ill. 392 , in an opinion by Justice Dunn, a judgment in a civil suit was reversed where the court had gone to the jury room and made oral answers to several questions asked him by the jury in regard to appellant’s rights, and the court said (399) “It is error, for which a judgment will be reversed, for a trial judge to hold any communication with the jury in regard to the instructions in the case except in open court. It is immaterial whether the instructions given were right or wrong. ‘The policy of the law requires that all the proceedings of the court should be open and notorious and in the presence of the party, so that if he is not satisfied with it he may taken exceptions to it in the mode pointed out by the law, and not be put to extraneous proof to show that an error has been committed in a secret proceeding, and, in fact, out of court’.”
In People v. Beck, 305 Ill. 593 , a criminal case involving a misdemeanor, a judgment of conviction was reversed in an opinion by Justice Dunn where the jury sent a note by the bailiff to the judge making an inquiry as to the right to manufacture liquor for one’s own use before July 1, 1921. The judge, in the absence of the defendant and of his counsel, stated to the jurors that he could not instruct them orally in response to the inquiry and read to them an instruction. The court held that the instruction was erroneous but further held (596) : “Regardless of the question of the correctness of the instruction the action of the court was error for which the judgment must be reversed.”
The court then said (596) : “The defendant was entitled to a public trial by jury, in every part of which he had a right to participate, to be present at every stage of the proceedings, to know everything that was done, to make objections, and to take such action as he might think best for securing his rights and for his protection. The law is well settled in this State that it is error for which a judgment will be reversed for a trial judge to hold any communication with the jury after their retirement to deliberate upon their verdict, except in open court.” The opinion then copiously quotes from the opinions in Chicago and Alton Railroad Co. v. Robbins, 159 Ill. 598 , City of Mound City v. Mason, 262 Ill. 392 , and Fisher v. People, 23 Ill. 218 .
In People v. McGrane, 336 Ill. 404 , Justice DeYoung wrote an opinion reversing a conviction for assault with intent to commit murder. In that case the jury retired to consider its verdict at 5:30 P.M. Five hours later the officer in charge of the jury brought the following communication to the judge: “Honorable Judge, would it be a fair question to ask your honor the minimum and maximum sentence on both verdicts ? C. W. Rimsnider, Foreman.” The State’s Attorney and counsel for the plaintiff in error were present at the time and the judge stated that the jury was entitled to an instruction on the question asked. He directed the officer to bring the jury into the courtroom, and in the absence of the plaintiff in error gave the jury an instruction in the language of the statute on assault with intent to commit murder and the penalty therefore. Counsel for the plaintiff in error was present and excepted to the giving of the instruction. The judgment was reversed solely for this error of the court, and in doing so the court said (408) : “Section 9 of the bill of rights prescribes that in all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel. Section 8 of division 13 of the Criminal Code (Cahill’s Stat. 1927, p. 953; Smith’s Stat. 1927, p. 1021,) provides that all trials for criminal offenses shall be conducted according to the course of the common law. By the common law the personal appearance of a person accused of a felony was required throughout the trial and it was also required that the record show the fact. (Sewell v. People, 189 Ill. 174 ; Harris v. People, 130 id. 457.) The plaintiff in error was entitled to a public trial by jury, at every stage of which he had the right to-be present and in every part of which he had the right to participate for his protection. (People v. Beck, 305 Ill. 593 ; People v. Harris, 302 id. 590; People v. Weinstein, 298 id. 264; Crabtree v. Hagenbaugh, 23 id. 289; Brown v. State, 24 Ark. 620 ; Roberts v. State, in Ind. 340; State v. Smith, 44 Kan. 75 ; Jones v. State, 26 Ohio St. 208 ; Hooker v. Commonwealth, 54 Va. 763 ; 1 Bishop’s Crim Proc.— 3d ed. — sec. 273; 2 Wharton’s Crim. Proc. — 10th ed.— sec. 1484.) The giving of the instructions to the jury is a part of the trial and the accused person has a right to hear the instructions read. Inquiry will not be made into' the correctness of an instruction given in his absence, and the error is not cured by the presence of the defendant’s counsel, since his attorney has no power to waive his right to be present in court. (Bonner v. State, 67 Ga. 510 ; Maurer v. People, 43 N. Y. 1 ; Shipp v. State, 11 Tex. Crim. App. 46.) That right may only be waived by the defendant himself.”
The unsoundness of the opinion in the Brothers case is clearly shown by the dissenting opinion of Justices Dunn and De Young, which points out the rule established in Illinois, and also in many other States, and the importance of the rule is stated in the dissenting opinion (561) : “If this single case were the only one to be affected by this judgment it might not be a matter of serious importance, but it is of serious importance if this case becomes a precedent. A strict compliance with the practice of having all proceedings in court in the presence of the accused and his counsel, with an opportunity to be heard at all stages of the trial, is a fundamental requirement of a jury trial in this State which has been maintained by an unbroken line of decisions. It is against the policy of the law of this State to indulge in secret communications between the judge and the jury, and for the failure to observe this fundamental requirement in jury trials, the judgment, in our opinion, should be reversed.”
Counsel for the People cite some decisions of Federal courts of appeal holding that it is necessary that prejudice appear before there should be a reversal because of the court communicating with a jury after it retires to consider its verdict. However, in the case of Brashfield v. United States, 272 U. S. 448 , 71 L. ed. 345, the Supreme Court calls attention to the fact that the decisions of the courts of appeal of the United States are conflicting, but, in a conviction for violation of the prohibition law, the Supreme Court, in an opinion by Justice Stone, followed the rule that has been adopted in Illinois and reversed a conviction because the trial judge inquired how the jury was divided numerically and was informed by the foreman that it stood 9 to 3, without indicating which number favored conviction. The reversal was upon that error of the court alone.
In Shields v. United States, 273 U. S. 583 , 71 L. ed. 787, in an opinion by Justice Taft, a judgment of conviction for conspiracy was reversed where the error of the court was that, after the jury sent a written communication to the court that it found certain defendants guilty and was unable to agree as to three defendants, the judge sent back the communication with the following written reply: “The jury will have to find also whether Shields, Widman and Gastman are guilty or not guilty.” This communication was not made in open court and neither the defendants nor their counsel was present, and afterwards the jury brought in a verdict finding all defendants guilty. The Court of Appeals affirmed but the Supreme Court reversed and called attention that such action of the trial court had been condemned in civil suits and said: “If this be true in a civil case, a fortiori is it true in a criminal case.” In that case it also appeared that counsel for the government and the defendants had requested the court to keep the jury out until it agreed, but the court said that such request did not authorize the action of the court.
I am unable to discover any facts or reasons that would distinguish the Brothers case from the Crabtree case. The rule adopted by this court in the latter case in 1860 has been followed without interruption or deviation, with the exception of the Brothers case.
The reason for a continuation of the rule is obvious. If nothing is permitted to take place except in the presence of defendant and his counsel, then the defendant has full knowledge of anything and everything that happens that might influence the verdict. If the court is permitted to talk with the jury in the jury room in the absence of the defendant, then the defendant has no knowledge of what was said or done and would be at a disadvantage in proving that something improper took place. The remarks of the judge may be ever so harmless and innocuous but his manner might be indicative of something — a facial distortion, a smile, a frown, a grimace — might conceivably indicate approval, disappointment or contempt which might adversely affect defendant’s cause. A litigant would face great difficulty in showing such facts in proving their influence upon the jury. It surely is against the policy of a law of this State to impose upon a defendant in a criminal proceeding such a burden.
The temptation of courts to avoid rules of procedure or statutory law because of their effect on a particular case should be avoided. It is submitted that the best interests of all the people will be served if we continue to be a government of laws rather than a government of men and that courts should not assume the liberty of disregarding rules of law established for the protection of litigants because of the notion that the violation of the rule had no effect on the particular case.
In view of the foregoing, I respectfully disagree with the majority opinion.
Mr. Justice Maxwell concurs in the foregoing dissenting opinion.