Petition for Writ of Certiorari — Tilley v. Illinois

INDEX

Petition for Writ of Certiorari

CR. GIN sk ckenndsndecescntaddesediskenanes

Ons CRemiaMahem 4. « . i vicic cc coswsnd ents ceasaes

Gusniiene peentdhed 0.06 RA

1. Petitioner was deprived of due process of law as

guaranteed by both the Federal and Illinois con-

stitutions, in at least two particulars:

(A) The trial judge communicated with the

jury in the absence of acoused...........

(B) The trial judge verbally discussed evi-

dence and law with the jury, contrary to

the Illinois Statute ...........c.cccceee

Assignments of TOrr0e ......cccccccccccccccccsces

1. The private visit of the trial judge to and com-

munication with the jury, in the absence of the

defendant, deprived accused of due process of

law

. The visit of the trial judge with the jury in the

jury room deprived petitioner of his right to a

Ee SOUL. <5 cawncinceuen <olésbacansancicis

- The communication with and visit of the judge

to the jury violated the Illinois Bill of Rights

and the constitution of the United States......

. The oral discussion between the jurors and the

Judge deprived petitioner of due process of law

in that by Illinois statute it is provided that the

Court shall in no case clarify, modify or in any

manner explain the-instructions otherwise than

OW UREN bcc ceibnsavivcesekoeccatawenmioes

ee ee

L For more than one hundred years it has been

the invariable rule that new trials will be or-

dered where the record shows proceedings

were held in the absence of the accused, or

where the jury was orally instructed ........

II. The Brothers decision rendered in 1932 is the

IV.

only exception from the general rule ever per-

mitted in Illinois. The Brothers decision was

based upon a particular unforeseen circum-

stance upon the particular facts appearing in

such particular case, and upon its face was

restricted in its application with a warning

that it not become a precedent in future cases.

The facts of this case are clearly distinguish-

able from the instant cause

The most recent decisions in Illinois indicate

adherence to the well-established rule

The act of the trial judge in visiting the jury

room and discussing evidentiary matters with

the jurors was palpably prejudicial. The oc-

currence itself is pointedly forbidden, both by

constitution and statutory enactment. Preju-

dice is accordingly conclusively presumed. To

place the burden of establishing prejudice

upon the accused is of itself a denial of due

10

1l

13

—

Table of Cases

Page

Bee We. Reemie, BOO TE. BD... .osccscccvccccscccse: 9

Brashfield vs. U.S., 272 U.S. 448; 71 L. ed. 345....... 9

Burton vs. U.S., 196 U.S. 283 (307) ; 48 L. ed. 482 (490) 8

Chicago & Alton Ry. vs. Robbins, 159 Ill. 598........ 7,10

City of Mound City vs. Mason, 262 Ill. 392 .......... 7,10

Crabtree vs. Hagenbaugh, 23 Ill. 289........... 6, 7, 8, 10

Diaz vs. U.S., 223 U.S. 442; 56 L. ed. 500 ............ 9

Fillippon vs. Albion Vein Slate Co., 250 U.S. 76; 63

SE AE Me aeteli dd cone canis wreck ice okenvawic 7

Fisher vs. The People, 23 Ill. 218 at 231 ............ 7,10

Glasser vs. U.S., 315 U.S. 60; 86 L. ed. 680........... 7,9

Lewis vs. U.S., 146 U.S. 370; 36 L. ed. 607 ............. 9

ome Os Why Be PO, RD iain vnc vc ccdccdccccccs 8

Parfet vs. Kansas City Life Ins. Co., 128 Fed. 2d. 361 7

People vs. Beck, 305 Ill. 593 ......... Nenekawees 6, 7, 8, 10

People vs. Brothers, 347 Ill. 530 ............... 10, 11, 15

People vs. Grandstaff, 324 Ill. 70 ................... . 6

People vs. Hoffman, 379 Ill. 318 at 323 ............. 8

People vs. Hotz, 327 Ill. 433 ........... eeeneanesee 9

People vs. Humphreys, 353 Ill. 340 ................. 9

Pwogee we. Malley, S67 TM. 200 on... occ ccccccconcs. 6

People vs. Lieber, 357 Ill. 423 ...................6. 8

People vs. McGeoghegan, 325 Ill. 337 at 356 ........ 8

People vs. McMiller, 410 Ill. 342 ................. 7, 9,13

People vs. McGrane, 336 Ill. 404 .................... 7,10

People vs. Rivers, 410 Ill. 410 at 419 ............. 7, 8,13

People vs. Yurkiates, 404 Ill. 157 ................... 9

Shields vs. U.S., 273 U.S. 563 ...................... 7,9

U.S. vs. Dunkel & Co., 173 Fed. 2d 506 ............ se

iii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1951

No.

RONALD U. TILLEY, PETITIONER

vs.

THE PEOPLE OF THE STATE OF ILLINOIS,

RESPONDENT.

—EEEEEaeae=S=SEeEeEeaeaeaeaeaeaeEeaeaeaeaeEeEeEeaeaeaeaeEeEeaeEeEeaSSQNN™SESESESESE™N™SQD=™E™SMNMNN =|

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF ILLINOIS

To the Honorable Chief Justice and Associate Justices

of the Supreme Court of the United States:

Petitioner prays that a writ of certiorari issue to review

the judgment of the Supreme Court of the State of IIli-

nois, entered January 24, 1952, affirming a judgment

and sentence of the Circuit Court of Sangamon County,

Illinois, finding the defendant guilty of the crime of

manslaughter and sentencing him to the penitentiary

for a minimum term of not less than four and for a

maximum term of not to exceed ten years. A petition

for rehearing was filed. This was denied upon March

17th, 1952, making the judgment final.

2

Opinion of the Illinois Supreme Court

Opinion of the Supreme Court of Illinois entered Janu-

ary 24, 1952, is printed as an appendix to this —

for the convenience of the Court.

Basis of Jurisdiction

Jurisdiction is invoked under the Fifth and Fourteenth

Amendments to the Constitution of the United States, and

under Article II, Secs. 2, 5 and 9 of the Bill of Rights,

Constitution of the State of Illinois, because the judg-

ment of the Circuit Court and the affirmance thereof by

the Supreme Court of Illinois, has deprived petitioner of

due process of law, guaranteed by the foregoing Consti-

tutional provisions. The [Illinois constitutional provi-

sions are as follows:

Illinois Constitution 1870, Bill of Rights, Art. II.

Sec. 2. No person shall be deprived of life, liberty or

property without due process of law.

Sec. 5. The right of trial by jury as heretofore en-

joyed shall remain inviolate.

Sec. 9. In all criminal prosecutions the accused shall

have the right to appear and defend in person and by

counsel . . . and to a speedy public trial by an im-

partial jury, etc.

(The due process language of the Fifth and Four-

teenth Amendments to the Federal Constitution is iden-

tical with Sec. 2, Art. II of the Illinois Constitution, above

quoted).

Question Presented

Petitioner was indicted by a Grand Jury of Sangamon

County, Illinois, and placed on trial, charged with mur-

der by abortion. The jury was chosen and the trial had.

3

The jury retired approximately at the hour of nine o’clock

on Saturday night, February 10, 1951, and on the morning

of Sunday, February 11, 1951, between the hours of 7:30

and 8:00 o’clock A.M., the Judge who presided at the trial

of his own volition went to the jury room, out of the pres-

ence of the defendant and his counsel, when court was not

in session, and the following occurred:

The Judge said:

“I went to the jury room with the bailiff and stood

outside the jury room with the bailiff. I said is there

any hope of arriving at a verdict. The jury said they

wanted some further information. I said for the jury

to read the instructions they had. I explained that I

would have to call the attorneys and the defendant back

and give new instructions in writing. A juror asked

the meaning of the statement read to the jury. I an-

swered, you have two instructions on that. J ury asked

if the defendant admitted performing an abortion.

I said, no, he specifically denies it.’’ (Rec. 286, Tr. 77.)

Petitioner contends that under the law of the State of

Illinois, (Bill of Rights, Art. II, Sees. 2, 5 and 9), and under

the Fifth and Fourteenth Amendments of the Constitution,

he has been deprived of due process, and has not had a fair

and impartial public trial as required by both the Constitu-

tions of the United States and the State of Illinois.

Reasons for Granting the Writ

Confusion exists in the various states, and has heretofore,

and still exists, in the courts of the United States, in regard

to communications from the Court to the jury, after the

jury has retired to consider its verdict. Prior to the de-

cision of this Honorable Court, in the case of Brashfield vs.

United States, 272 U.S. 448; 71 L. ed. 345, great confusion

existed in the decisions of the United States Circuit Courts

of Appeals, with reference to inquiries by the trial judge

4

as to how the jury stood. The decision in the Brashfield

case was followed in the case of Sheilds vs. United States,

273 U.S. 583, and these decisions removed the confusion

which existed upon this particular matter.

However, the invasion of the sanctity and privacy which

the law contemplates should be accorded deliberations of

the jury, without private suggestions of any kind either

from the court or others, after it has retired to consider its

verdict, is constantly subject to abuse by the assumption,

innocently perhaps, that such suggestions may expedite the

determination of the case. The danger involved is appar-

ent. The question presented by the facts in this case, dis-

closes that opportunity for a miscarriage of justice is

afforded by any visit of the trial judge to the jury room,

out of the presence of the defendant and his counsel. This

is particularly true when the jury has been deliberating

and apparently unable to agree for approximately eleven

hours, at the end of a week and upon Sunday morning, as in

this case. The preservation of the freedom and sanctity

of a jury’s deliberations is much more important than the

guilt or innocence of any defendant in any case. If the in-

tegrity of the jury system be breached as in this case, if a

trial judge be permitted without request from the jury

and in the absence of the accused to inject his presence,

his words, his interpretation of evidence, into the jury room

then truly the jury system with all of its constitutional safe-

guards and guarantees is completely destroyed.

Wherefore, it is respectfully submitted that this Petition

for the Writ of Certiorari to review the judgment of the

Supreme Court of the State of Illinois should be granted.

ArtHur M. Firrzcera.p,

Attorney for Petitioner.

BRIEF IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI

Statement of Facts

The facts pertinent to the question presented are set

forth sufficiently in the petition under the heading, ‘‘Ques-

tion Presented.’’

Assignments of Error

1. The Supreme Court of Illinois erred in holding that

the private visit of the trial judge to, and communication

with, the jury when Court was not in session and while pe-

titioner and his counsel were absent, did not deprive him

of due process.

2. The Supreme Court of Illinois erred in not holding

that the visit of the trial judge to the jury deprived the

petitioner of his right to a public trial while he is present.

3. The Supreme Court of Illinois erred in not holding

that the communication and visit by the judge to the jury

deprived the petitioner of his rights as provided by the

Bill of Rights of the Illinois Constitution and by the Con-

stitution of the United States.

4. The oral discussion, questions by jurors and re-

sponses by the trial judge denied petitioner due process

of law in that it was a direct violation of the Illinois Statu-

tory provisions (Chp. 110, Par. 191, Smith-Hurd Stat.

1951) which provides that the Court “shall in no case

clarify, modify or in any manner explain the instructions

otherwise than in writing.’’

PROPOSITIONS OF LAW

I.

The Opinion of the Supreme Court of Illinois deprives

Petitioner of the protection guaranteed by the Illinois and

Federal Constitutions.

Illinois Constitution 1870, Bill of Rights, Art. II.

Sec. 2. No person shall be deprived of life, liberty or

property without due process of law.

Sec. 5. The right of trial by jury as heretofore enjoyed

shall remain inviolate.

Sec. 9. In all criminal prosecutions the accused shall

have the right to appear and defend in person and by coun-

sel . . . and to.a speedy public trial by an impartial jury,

ete.

(The due process language of the Fifth and Fourteenth

Amendments to the Federal Constitution is identical with

that of Sect. 2, Art. II of the Illinois Constitution).

II.

The Statutes of Illinois require that all instructions to

the jury be in writing.

‘‘The Court shall give instruction to the jury only

in writing and only as to the law of the case . . . and

he shall in no case, after instructions are given, clarify,

modify or in any manner explain the same to the jury,

otherwise than in writing.’’

Ill. Practice Act—Chap. 110, Par. 191, Smith-Hurd

Stat. 1951;

People vs. Kelley, 347 Ill. 221;

People vs. Grandstaff, 324 Ill. 70;

Crabtree vs. Hagenbaugh, 23 Ill. 289;

People vs, Beck, 305 Ill. 593.

7

Il.

From the admission of Illinois to the Union in 1818, until

the decision of People vs. Brothers, 347 Ill. 530, every crim-

inal conviction (and civil verdicts also) was reversed where

the record showed that the jury was instructed verbally

or where proceedings were held in the absence of the ac-

cused, or the parties,

Fisher vs. The People, 23 Ill. 218 at 231;

People vs. Beck, 305 Ill. 593 at 596;

Crabtree vs, Hagenbaugh, 23 Ill. 349;

People vs. McGrane, 336 Ill. 404;

Chicago & Alton Ry. vs. Robbins, 159 Ill. 598;

City of Mound City vs. Mason, 262 Ill. 392.

IV.

The principle involved in this case has been adhered to in

recent Illinois Supreme Court decisions.

People vs. McMiller, 410 Ill. 338 (decided Nov.

1951) ;

People vs. Rivers, 410 Ill. 410 (decided Nov. 1951).

Vv

Prejudice will be presumed from improper communica-

tions to the jury and need not be shown affirmatively.

Fillippon vs. Albion Vein Slate Co., 250 U.S. 76;

63 L. ed. 853;

Shields vs. U.8. 273 U.S. 583;

Parfet vs. Kansas City Life Ins. Oo., 128 Fed. 2d

361;

Glasser vs. U. 8., 315 U. 8. 60, 86 L. ed. 680.

(A) It has always been the law of Illinois that the vio-

lation of a Constitutional, fundamental and inherent right

and a departure from procedural requirements is per se

prejudicial. Prejudice need not be searched for. It is pre-

sumed from the occurrence itself.

Crabtree vs. Hagenbaugh, 23 Ill. 289;

People vs. Beck, 305 Ill. 593 at 596;

People vs. Rivers, 410 Ill. 410 at 419;

People vs. McGeoghegan, 325 Ill. 337 at 356;

People vs. Hoffman, 379 Ill. 318 at 323;

People vs. Lieber, 357 Til. 423, from which we quote

at P. 446:

‘‘There is no well-founded rule of law which places

the burden upon the defendant to show that he had been

prejudiced by error. Loose language to the contrary

may be found but it has no sound basis. The true

rule everywhere is, that when error against a convicted

defendant appears it is.presumed to have improperly

affected the result. This rule was enunciated by Mr.

Justice Scholfield, in Kirby vs. People, 123 Ill. 436,

and was later approved in People vs. Michael, 280 Til.

11 It is but a logical sequence to say that the

burden of showing what the record discloses to rebut

the presumption is upon the prosecution and not upon

the defendant, for if the record fails to show that the

error was not prejudicial, the presumption is con-

clusive.’’

VI.

Where the jury has debated for a long period prejudice

is likely to occur from any visit or communication of the

judge.

U.S. vs. Dunkel & Co., 173 Fed. 2d 506;

Nick vs. U.S., 122 Fed. 2d 660;

Burton vs. U.S., 196 U.S. 283 (307); 48 L. ed. 482

(490).

VIl.

The intrusion of the trial judge into the jury room and his

instructions and communications to them, when the court

was not in session and in the absence of petitioner and his

counsel was denial of due process.

People vs. McMiller, 410 Ill. 342;

Bailey vs. People, 190 Ill. 28;

People vs. Yurkiates, 404 Ill. 157;

People vs. Yurkiates, 404 Ill. 157;

Lewis vs. U.8., 146 U.S. 370; 36 L. ed. 607;

Diaz vs. U. §., 223 U. 8. 442; 56 L. ed. 500;

Shields vs. U. 8., 273 U. 8. 583; 71 L. ed. 787;

Brashfield vs. U. 8., 272 U. 8. 448; 71 L. ed. 345;

Glasser vs. U. 8., 315 U.S. 60; 86 L. ed. 680;

People vs. Humphreys, 353 Ill. 340;

People vs. Hotz, 327 Ill. 433.

ARGUMENT

The decision of the Supreme Court of Illinois in the in-

stant cause deprives petitioner of the protection guaran-

teed by the Constitutions of Illinois and of the United

States. From the admission of Illinois to the Union in 1818

until the decision of People vs. Brothers, 347 Ill. 530, the

Supreme Court of Illinois invariably and without exception

reversed every criminal conviction where the record showed

that the jury was orally instructed or where proceedings

were held in the absence of the accused.

Fisher vs. The People, 23 Ill. 218 at 231;

People vs. Beck, 305 Ill. 593 at 596;

Crabtree vs. Hagenbaugh, 23 Ill. 349;

People vs. McGrame, 336 Ill. 404;

Chicago & Alton Ry. vs. Robbins, 159 Ill. 598;

City of Mound City vs. Mason, 262 Ill. 392.

The Brothers decision was rendered February 19, 1932

and was the first and only departure from the established

principle thoroughly established by the foregoing de-

cisions. The present opinion of the Illinois Supreme Court

is based solely upon the Brothers decision of 1932. Yet

an examination of the Brothers decition demonstrates that

the facts in the present case are wholly dissimilar from

that decision. If the holding in the Brothers case were

confined to the particular restricted and unavoidable cir-

cumstance disclosed in such opinion there would be but

little reason to complain. But where, as was foretold

and warned against in that opinion, such opening breach

of the constitutional guarantee is again used and applied

as in the instant case the flood gates are open wide to an

extension of the ill-conceived doctrine and the guarantee of

11

a fair public and untrammeled jury trial guaranteed by the

Illinois Bill of Rights is completely and forever nullified

and abrogated.

A short comparison of the Brothers situation with the

present case will suffice to demonstrate the vice of the

present opinion. In the Brothers case a man was mur-

dered by being shot in the back in cold blood. The identity

of the killer was the only issue. At the conclusion of the

trial the presiding judge, through oversight, submitted to

the jury the usual forms of verdict given in such cases

including a verdict for manslaughter. The jury, after

deliberating a few hours, sent a communication to the

judge, through the bailiff, asking whether further instruo-

tions were given concerning the manslaughter form of

verdict. The Court had the bailiff bring all the instruc-

tions to the bench where after a conference with counsel

the manslaughter form of verdict was removed from the

series of instructions and the same were returned to the

jury by the bailiff without comment from the Court. In view

of the fact that the accused could not have been found guilty

of manslaughter, the withdrawal of such form of verdict

was held to be proper and without prejudice. In the

Brothers case the Judge remained upon the bench and the

jury remained in the jury room. In the Brothers case

no communication, either verbal or written, was transmit-

ted to the jury by the Court. In the Brothers case the

inquiry did not concern the evidence, its weight, effect or

meaning. In the Brothers case a complete record of the

occurrence was preserved by the trial court. In the present

cause the jury did not request any instruction from the

Court. The visit of the judge to the jury room was gratui-

tous. The judge appeared before the jury in the jury

room in person and addressed the jurors in person. In

the present case a verbal discussion of the meaning and

12

interpretation of evidence took place between the judge

and the jurors. In the present case neither counsel nor

accused were present or aware of the occurrence. No

record of the transaction was made by the trial judge.

The occurrence was discovered accidentally by counsel in

interviewing the jurors while preparing a petition for pro-

bation. In the instant case the Judge wholly departed

from his judicial functions and did a thing which was both

unnecessary and improper. In the Brothers case the act

of the Judge was not calculated to nor could it conceiv-

ably influence the deliberations of the jury. In the instant

ease the conduct of the judge could have no other effect

than to influence the jury deliberations.

Even the learned justice who wrote the majority opin-

ion in the Brothers case, felt it necessary to admonish

against any departure from the established rule, by stating

at page 546 of the printed decision that ‘‘communications

from Judge to jury should be made in open court in the

presence of the parties and it is an almost universal rule

that if any statements material to the issue be made by the

judge to the jury in the absence of the defendant, a new

trial will be awarded. Of such importance is an untram-

meled deliberation by the jury that courts will generally

grant a new trial when any communication with a jury,

either by the judge or a third person, is in any way calculat-

ed to prejudice the defendant.’’ Having so first announced

the general rule the majority of the court then proceeded

to find that the occurrence could not have prejudiced the

rights of the accused and that the entire incident was un-

avoidable and thus excusable under the restricted facts

and circumstances of that case. Two very able judges dis-

sented upon the ground that adherence to established prin-

ciples is preferable to specific deviations under particular

and restricted circumstances. The closing words of the

13

dissenting opinions at page 561 are a better expression of

the writer’s views than it is possible for the writer at this

time to create. The dissenting justices said:

‘If this single case were the only one to be affected by

this judgment, it might not be a matter of serious im-

portance, but it is of serious importance if this case be-

comes a precedent. A strict compliance with the prac-

tice 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, the judgment should be reversed.’’

In the case of People vs. McMiller, 410 Ill. 338, decided in

November, 1951, in a trial before the court without a jury,

the court had made private investigations out of the pres-

ence of the defendant and our Supreme Court reversed the

cause, saying:

‘‘The right of a person accused of crime to a fair

and impartial trial, according to the recognized rules of

law and procedure, is not a mere formality but is a

substantial part of the law of the land. When he waives

a trial by jury he is entitled to the same fair and im-

partial treatment he would expect and be entitled to by

a jury. (People vs. Hoffman, 379 Ill. 318.)’’

Upon the same page of the Opinion, and at a later point,

in referring to the conduct of the trial judge, the Court said

that it:

‘*is a violation of his constitutional rights.’’

Again in the case of People vs. Rivers, 410 Ill. 410, also

a criminal case, upon page 419, the Court said:

‘*When a defendant in a criminal case waives trial

by jury and submits his right and liberty to a judge,

14

that judge is in the identical position of the jury and

all the recognized rules for the protection of the de-

fendant’s rights apply with equal force. (People vs.

Hoffman, 379 Ill. 318.) It is axiomatic that any un-

authorized information reaching the jury is prejudicial

error.’’

Also in this case upon page 416, the Illinois Supreme Court

stated :

‘‘The defendant in any criminal proceeding has an

inherent and constitutional right that all proceedings

against him shall be open and notorious and in his

presence and any inquiry or acquisition of information

or evidence outside of open court and outside of the

presence of defendant, is prejudicial error. The de-

fendant cannot be expected to know the scope and extent

of any private inquiry made by the court outside of

open court and he is not required to inquire into such

matters and to resort to extraneous proof to show that

he has been prejudiced. He has a right to rely upon

his constitutional guarantee that nothing shall be con-

sidered against him except the competent evidence in-

troduced in open court in his presence by the witnesses

who confront him. . . . The question here is simply,

does this record show any private investigation what-

soever by the court outside of the presence of the de-

fendant. If it does, we must find prejudicial error

or we will throw open the door to such private investi-

gations and throw the burden on the defendant to show

actual prejudice.’’

Continuing from the same decision, we quote further from

page 419:

‘‘Tt is axiomatic that any unauthorized information

reaching the jury is prejudicial error.”’

The Brothers decision for the first time in the State of

Illinois took out of the field of certainty the protection of

fair jury trials and substituted for such certainty the con-

struction which at various times, various courts, influenced

15

by various conditions, then existing, may see fit to put upon

the same act. That such differences of opinion are not

chimerically conjectured, is disclosed by the deviation in

the Brothers opinion from the long consistent line of au-

thorities adhered to in the State of Illinois for more than

one hundred years. This danger is as aptly expressed by

the dissenting opinions in the instant cause, as it is possible

to express it. Mr. Justice Bristow dissenting in the present

opinion said:

‘**T 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 pres-

ence 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 harm-

less and innocous but his manner might be indicative

of something—a facial distortion, a smile, a frown, a

grimace,—might conceivably indicate approval, dis-

appointment or contempt which might adversely af-

fect defendant’s cause. A litigant would face great

difficulty in showing such facts in proving their influ-

ence 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 proced-

ure or statutory law because of their effect on a par-

ticular case should be avoided. It is submitted that the

best interests of all the people will be served if we

16

continue to be a government of laws rather than a gov-

ernment of men and that courts should not assume the

liability 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

ease.’’? (Tr. PP. 94-95.)

The dissenting opinion (Tr. PP. 88-95) analyzes the de-

cisions of the courts of Illinois, and of the United States,

in connection with this question. We respectfully call the

attention of the court to this analysis which seems to ren-

der unnecessary the repetition of the exhaustive discussion

of this important point by the writer.

In the majority opinion in this case in describing what

occurred, the Court stated:

‘‘Defendant next alleges as prejudicial error that

the trial judge was guilty of improper conduct in com-

municating with the jurors after they had retired to de-

liberate upon their verdict. The trial was concluded on

a Saturday, and after the jury had retired it deliber-

ated all night without arriving at a verdict. The next

morning about eight o’clock the judge went to the jury

room in the company of a bailiff, and inquired whether

there was any hope of arriving at a verdict. One of

the jurors stated they wanted further information,

whereupon the judge told them to read the instruc-

tions. He explained further that any new instructions

would have to be given in the presence of the attorneys

and the defendant. One of the jurors then asked the

meaning of defendant’s waiver herein above referred

to, and inquired whether defendant in that statement

admitted performing an abortion. The judge replied,

‘No, he specifically denies it.” Not long thereafter the

jury reported the verdict.’’ (Tr. P. 86.)

An analysis of the report of this visit of the Judge to

the jury discloses these things: The jury tho unable to

agree, had not requested additional instructions; the jury

17

specified the things about which it was not in agreement.

One of those things referred to the so-called defendant’s

waiver, and inquiry was made by some member or members

of the jury as to whether the defendant had admitted (by

that waiver) performing an abortion. The judge replied,

‘*No, he specifically denies it.’? The opinion then says,

‘‘not long thereafter the jury reported the verdict.’’ The

record and the opinion of the court disclose that this in-

cident of the visit of the judge to the jury occurred on

Sunday morning, probably sometime between 7:30 and 8:00

o’clock A.M.; that this jury had retired to deliberate about

the verdict at about 9:00 o’clock on the Saturday night

before. There had been an all night session, or approxi-

mately eleven hours, and they were not able to reach an

agreement. For some reason, which can never be known,

something changed that situation, and mysteriously and

quite rapidly, a verdict was returned. It is anybody’s guess

as to why, if the debate of the jury had been ‘‘did he admit

that he had performed the abortion, or did he deny it?”’,

and the jury being convinced from the judge’s statement

that he had denied it, they would not have returned a ver-

dict of not guilty. If, on the other hand, some expression

of countenance or gesture of the Judge, which, of course,

could not become any part of the record in the case, had

led the jury to believe that there was no reliability in his

denial, then it would be easy to see why the verdict of

guilty was so soon returned by the jury.

There can be no question about the impropriety and

danger of the incident in this case; there can be no doubt

that it has long been the law of Illinois and other states,

that no such incident should be tolerated, particularly in a

capital case. A jury is not permitted to impeach its own

verdict and the occurrence itself therefore, cannot be

proven by the defendant, by evidence coming from the jury.

18

The occurrence having been secret and nothing appearing

of record ordinarily escapes detection by the accused.

Whether for this reason or for others, it has been the in-

variable rule of law that where improper communications

have occurred between the Court and the jury, prejudice

has necessarily occurred and is ipso facto presumed. A

breach of the constitutional guarantees extended to all per-

sons accused of crime, always indicates prejudice. To cast

upon the accused the burden of convincing a reviewing

court that the violation of his constitutional rights and

privileges has been harmful to the accused is an impossible

burden. In several of the Illinois decisions cited in the

foregoing Brief, the Illinois Supreme Court has said that

the occurrence itself is intolerable and that a departure into

the speculative realm of prejudice or lack of prejudice will

not be indulged in by the reviewing court. The question is

simplified by the statement that the deprivation of consti-

tutional rights is necessarily and in all cases prejudicial,

and that a new trial is always preferable to a speculative

discussion concerning the particular effect of the particular

deprivation in the particular case.

The gratuitous visit of the trial judge to the jury room

and the verbal discussion between the judge and the jury,

concerning the meaning and effect of a vital piece of evi-

dence, when court was not in session, and when the accused

and counsel were absent, under no stretch of the imagina-

tion could be anything but improper and prejudicial, Com-

ing as it did after a trial lasting six days, with closing

arguments on Saturday evening, and after deliberating

all night, until the Sabbath morning, preceding the Lin-

coln Birthday holiday, when the jury would naturally wish

to go to their homes, created a ready opportunity for the

jury to accept any apparent justification for reaching a

verdict and endng the ordeal of further divided or dead-

19

locked deliberations. The fact that a jury apparently hope-

lessly divided and unable to agree after eleven hours of

deliberation, could arrive at a verdict of manslaughter,

within an hour after the judge had discussed the case ver-

bally with such jury, in and of itself conclusively demon-

strates the pernicious effect which such improper and un-

authorized invasion of the jury’s deliberations must have

had upon such verdict.

The cases cited in our foregoing Brief of Points and

Authorities support in every particular the thoughts which

we here express, We seek and we ask adherence to es-

tablished principles. We request that the accused in this

case be accorded his constitutional rights and privileges.

We seek due process of law and a fair, public trial for the

accused.

We respectfully therefore, submit that the judgment of

the Supreme Court of Illinois should be reversed with

directions that the cause be remanded to the trial court

for further hearing.

Respectfully submitted,

ArtHur M. Firzesrazp,

504 East Monroe Street,

Springfield, Illinois.

Attorney for Petitioner.

APPENDIX

(Opinion of the Supreme Court of the State of Illinois)

Docket No. 32057—Agenda 5—November, 1951

Tae Peorie or THE State or Inuivo1s, Defendant in Error

vs.

Ronaup U. Tuzey, Plaintiff in Error

Mr. Justice Crampton delivered the opinion of the court:

Plaintiff in error, Ronald U. Tilley, hereinafter referred

to as defendant, was found guilty of manslaughter, after a

trial by jury in the circuit court of Sangamon County. He

was sentenced to the penitentiary for a term of not less than

four nor more than ten years. He brings the cause here

for review, listing 38 assignments of error. The cause was

before this court, on review of a previous trial, in People v.

Tilley, 406 Ill. 398, and was remanded for a new trial be-

cause of certain errors not involving the weight of evidence.

The record discloses that on July 20, 1946, Renee Stanley,

a woman nineteen years of age, died in a hospital as the

result of peritonitis caused by an abortion. In an oral state-

ment made on the evening before her death she revealed to

her physician and to Frank M. Pfeifer, an assistant State’s

Attorney, that she had been pregnant and on July 9 had

gone to defendant’s office for an abortion; that he used an

instrument on her private parts, and after applying a pack-

ing of gauze and cotton told her to go home; that on a sub-

sequent visit the procedure was repeated; and that on the

following day she became violently ill. Her statement, as

testified to by Pfeifer and the physician, was admitted into

evidence as a dying declaration. It was the only evidence

tending to connect defendant with the death of the girl.

21

Defendant did not testify. In the course of the trial, after

the State’s.Attorney began to prove intent by evidence that

similar crimes had been committed by defendant on pre-

vious occasions, the latter signed a waiver stating that if

it was proved he performed the abortion then he agreed the

abortion was not necessary to save the life of the girl and no

proof of criminal intent should be necessary. The waiver

was introduced into evidence.

The assignments of error as argued in the briefs fall into

five groups which we shall consider accordingly. Defendant

first contends the statement of the deceased was not prop-

erly admitted into evidence for the reason that she was

extremely ill, under the influence of drugs and medicine,

and was not in sufficient possession of her mental faculties

to understand [fol. 10] the transaction. This same con-

tention was disposed of by our previous opinion in this

case, on evidence substantially similar to that contained

in the present record, and need not be discussed at length

herein. The assistant State’s Attorney who questioned

her testified she talked coherently and intelligibly; the

clergyman who administered the last rites of her church

testified she was coherent and lucid ; and her physician tes-

tified that in his opinion her mental condition was very

clear at the time the statement was obtained, that she was

conscious and aware of what was going on, that she was

mentally alert and lucid, and that peritonitis victims are

generally alert. Questions concerning the credibility of

the witnesses and the weight to be given their testimony

are matters for the court on the preliminary examination,

or for the jurors when the witnesses testify before them,

and this court will not substitute its judgment on such

matters for that of the trial court or the jury. People v.

Tilley, 406 Tl. 398.

22

It is also contended the court erred in admitting into

evidence the preserved female parts of the deceased and

allowing them to be exhibited to the jury: that such evi-

dence could serve no useful purpose except to arouse anger

and prejudice. This contention must likewise be rejected.

The court has a reasonable discretion in the admission or

rejection of exhibits in evidence. Even though the jury

may have a full description of the injury by the testimony

of physicians, it is not an abuse of discretion to admit in

evidence the uterus itself to aid the jury in understanding

the nature and extent of the injury and in determining

how the offense was committed. It at least tended to prove

a circumstance to be considered by the jury along with all

the other evidence. See People v. Tilley, 406 Ill. 398; People

v. Hobbs, 297 Ill. 399.

Further assignments of error are predicated upon the

trial court’s refusal to give certain instructions tendered by

defendant. Eight instructions are specified. They concern

the weight to be given the dying declaration, and refer to

particular circumstances and conditions under which the

statement was given, such as the effect of the drugs, medi-

cine and illness upon the recollection and memory of de-

ceased and her ability to understand what was happening.

We have considered them in order and find in each case

that the instruction is either improper, unnecessary or repe-

titious. Other instructions given by the court at defend-

ant’s request informed the jury that a dying declaration

[{fol. 11] is not the best evidence, and that the circumstances

under which it is made, such as the physical and mental

condition of the declarant, and the method and manner of

taking it, ‘‘may be taken into consideration in determining

the credibility or weight to be given such declaration.’’ The

court gave seventeen instructions tendered by defendant

and nine tendered by the People. We think the jury was

23

sufficiently instructed as to all those parts of the refused

instructions which were proper to be given. Defendant

tendered 41 instructions, a number far in excess of that

necessary for the points involved in the case, and he is not

in a position to complain that the court, in the length of time

it could devote to consideration of the instructions, refused

Ill. 612.

Defendant next alleges as prejudicial error that the trial

judge was guilty of improper conduct in communicating

with the jurors after they had retired to deliberate upon

their verdict. The trial was concluded on a Saturday, and

after the jury had retired it deliberated all tight without

arriving at a verdict. The next morning about eight o’clock

the judge went to the jury room in the company of a bailiff,

and inquired whether there was any hope of arriving at a

verdict. One of the jurors stated they wanted further in-

formation, whereupon the judge told them to read the in-

structions. He explained further that any new instructions

would have to be given in the presence of the attorneys and

the defendant. One of the jurors then asked the meaning

of defendant’s waiver herein above referred to, and in-

quired whether defendant in that statement admitted per-

forming an abortion. The judge replied, ‘No, he spe-

cifically denies it.’”” Not long thereafter the jary reported

the verdict.

It is insisted that any communication whatever between

the judge and the jury, except in open court with the de-

fendant present, is prejudicial error entitling Jefendant to

a new trial. Several early decisions are cited in which the

language of the court tends to support this contention.

But the holdings in such cases were discussed in People v.

Brothers, 347 Ill. 530, wherein an exhaustive review of the

authorities on the present question was made, and the rule

24

was announced that judgments will not be reversed when

it is apparent that no injury has resulted from a com-

munication to the jury, either by the court or by third per-

sons. In that case the judge received from the jurors a

[fol. 12] request for information concerning a form of ver-

dict submitted for use in case defendant was found guilty

of manslaughter. In defendant’s absence he thereupon

withdrew the form of verdict from the jury. There had

been no evidence in the case to warrant the giving of an

instruction on that subject or a form of verdict concerning

it, and the latter had been submitted through inadvertence.

It was held that the action of the trial judge was not preju-

dicial error, and the judgment, entered upon a verdict find-

ing defendant guilty of murder, was affirmed. In the case

at bar the judge merely inquired as to the possibility of a

verdict, and, in response to questions by the jurors, advised

them to read their instructions, explained that any new ones

would have to be made in the presence of defendant and

the attorneys, and stated that defendant in signing the

waived did not admit performing an abortion. While the

action of the judge in communicating at all with the jurors

under these circumstances was highly imprudent, it is clear

that the statements, in themselves, could by no possibility

work an injury to defendant’s interests. The communica-

_ was neither prejudicial to him nor calculated to influence ~

‘the jury. Although we do not wish to imply the slighest

sanction to such practices, we think that in view of its

nature the present communication would not warrant set-

ting aside the verdict or reversing the judgment. As we

observed in the Brothers case: ‘‘Privacy of jury delibera-

tions should be zealously protected against invasion, but

the cardinal test on a motion to set aside a verdict on that

ground is whether or not the invasion was calculated to

influence the verdict of a jury. If it was not so calculated

25

it would be idle to disturb a verdict. Often it is practically

impossible to prevent a juror from communicating with a

trial judge, as when he approaches the judge and asks per-

mission to telephone to his family or to say that he is sick.

surely, such harmless communications of themselves are

an insufficient excuse for setting aside a verdict or revers-

ing a judgment.’’

Defendant lastly urges that the evidence is such that it

admits of but one of two conclusions, either defendant is

guilty of murder or he is innocent; and that the court

erred in giving a manslaughter instruction. In support of

this contention he argues that the element of intent to

commit the act when not necessary to save the mother’s life

being admitted by the waiver, any question of manslaughter

was thereby removed from the case. We find no merit

[fol. 13] in the contention. The offense of involuntary

manslaughter includes the killing of a human being without

any intent to do so, in the commission of an unlawful act.

(Ill. Rev. Stat. 1949, chap. 38, par. 363.) The waiver or

agreement entered into in the trial court does not eliminate

any of the elements of such offense from the case at bar.

The intent therein stipulated was not an intent to cause

death but merely an intent to perform the unlawful act of

causing an abortion when not necessary to save the

mother’s life. While the statute contemplates that persons

performing such acts shall be guilty of murder when death

results, it does not remove the offense from the definition of

manslaughter. As we have heretofore construed the stat-

utes, ‘‘they do not take the offense here charged out from

under the definition of manslaughter, but define this and

similar offenses, under certain conditions, to constitute also

the more serious offense of murder.’’ (People v. Carrico,

310 Ill. 543.) Defendant cannot complain that the jury con-

victed him of the lesser offense of manslaughter.

26

Upon examination of this record we are convinced that

defendant has had a fair and impartial trial notwithstand-

ing the irregularity hereinabove discussed. It is not the

purpose of a reviewing court to determine whether a record

is perfect, but to determine whether the accused has had a

fair trial under the law and whether his conviction is based

on evidence establishing his guilt beyond all reasonable

doubt.

Defendant has failed to show any prejudicial error, and

the judgment of the circuit court of Sangamon County is,

therefore, affirmed.

Judgment affirmed.

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 follow-

ing 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 ver-

dict 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 Tl. 404. An analysis of those

[fol. 14] cases shows conclusively that the court misunder-

stood or misinterpreted their holdings on the question

under consideration.

In Crabtree v. Hagenbaugh, 23 Ill. 289, after the jury had

27

retired to consider their verdict in a civil suit they sent for

the judge, who repaired to their room and there had inter-

course 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 con-

sider 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 Tl.

598, in a civil suit, after the jury retired to consider its

verdict it sent a written communication to the judge in-

quiring, if the jury should find for the plaintiff, whether

the damages should be assessed up to the commencement

28

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

[fol. 15] 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 unneces-

sary. It may, at times, it is true, be attended with incon-

venience; 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 opin-

ion 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 re-

gard 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 im-

29

material whether the instructions given were right or

wrong. ‘The policy of the law requires that all the proceed-

ings 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 People v. Beck, 305 Tl. 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 his counsel,

stated to the jury 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 fur-

ther held (596) : ‘‘Regardless of the question of the correct-

ness of the instruction the action of the court was error for

(fol. 16] 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 pro-

ceedings, to know everything that was done, to make objec-

tions, 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 communica-

tion 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 Tl. 598, City of Mounty City v.

Mason, 262 Ill. 392, and Fisher v. People, 23 Ill. 218.

30

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 con-

sider their 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 jury 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 plain-

tiff 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

[fol. 17] at every stage of which he had the right to be pres-

ent and in every part of which he had the right to partici-

pate for his protection. (People v. Beck, 305 Ill. 593; Peo-

ple v. Harris, 302 id. 590) ; People v. Weinstein, 298 id. 264;

Crabtree v. Hagenbaugh, 23 id. 289; Brown v. State, 24 Ark.

31

620; Roberts v. State, 111 Ind. 340; State v. Smith, 44 Kan.

75; Jones v. State, 26 Ohio St. 208; Hooker v. Common-

wealth, 54 Va. 763; 1 Bishop’s Crim. Proc.—3d ed.—seo.

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 attor-

ney 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 prece-

dent. 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

32

court communicating with a jury after it retires to con-

sider its verdict. However, in the case of Brashfield v.

United States, 272 U. 8. 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,

[fol. 18] 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 fore-

man 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 convic-

tion 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 the 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 com-

munication 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 by the Supreme Court re-

versed 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 govern-

ment 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.

33

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 prov-

ing 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 distor-

tion, a smile, a frown, a grimace—might conceivably indi-

(fol. 19] cate 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 crim-

inal 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 gov-

ernment 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.