# Petition for Writ of Certiorari — Tilley v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1952
- **Citation:** 344 U.S. 824

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1228%3A1. Public record. Not legal advice.