The evidence in the record in regard to the identity of the plaintiff in error as the murderer of Lingle is exceedingly contradictory. As set out in the opinion of the court, of the witnesses who saw the man who fired the fatal shot and fled from the scene of the crime an equal number stated that the plaintiff in error was the man and that he was not. It is hardly practicable to set out or discuss in detail in an opinion all the cross-examination of each witness and all the evidence of circumstances tending to contradict or to corroborate each witness, and it is not necessary for the purpose of this dissenting opinion. It is sufficient to say that the evidence was in strong conflict. In our judgment it is difficult to say on which side of the issue was the preponderance of the evidence, much less to say that it was convincing of the guilt of the plaintiff in error beyond a reasonable doubt. However that question may be determined, the error of the court in communicating *Page 553 with the jury after they had retired from the bar requires a reversal of the judgment. The error occurred in the following manner: The court in instructing the jury read an instruction as to the form of the verdict which included three forms in case the verdict should be guilty, varying according to the punishment imposed — whether death, or imprisonment for life, or for a term of years — and another form in case the verdict should be not guilty. These four forms of verdict, with another marked "27-D," finding the defendant guilty of manslaughter, were delivered to the jury. They retired, and after they had deliberated more than twenty-four hours a written communication signed by the foreman was sent to the judge asking if there were any instructions in the case relative to form 27-D. As stated by the court in the bill of exceptions, this occurred very shortly before the verdict was returned. The judge, on receiving this note, sent for all the forms of verdict which had been submitted to the jury, and, finding them in proper form except 27-D, retained the latter, returned the others and sent word to the jury that there were no further instructions. All this occurred out of the presence and hearing of the plaintiff in error and his counsel and the jury were not brought into court. The manslaughter form of verdict was sent to the jury, as certified in the bill of exceptions, by inadvertence. An assistant State's attorney handed the forms of verdict in a murder case, including the manslaughter form of verdict, to the judge, who gave them to the jury without examination.
Early in the history of the State it was decided at the April term, 1859, in Fisher v. People, 23 Ill. 218, (orig. ed. p. 283,) that it was improper for any juror to communicate with the court, in writing or verbally, in reference to any matter belonging to the case, but if the jury desired to communicate with the court it should send a request to the court through the officer in attendance, that the jury might be brought into court in a body. It is true, as said in the *Page 554 majority opinion, that there were other errors in that case which required a reversal of the judgment, but it is also true that the court condemned the permitting of any of the jurors, while they were deliberating, leaving the jury room and coming into court and holding a conversation with the judge, and also condemned the court's making such a request of the foreman or any other member of the jury, saying it was liable to great abuse. In the same volume, at the January term, 1860, is reported the case of Crabtree v. Hagenbaugh, 23 Ill. 289, (orig. ed. p. 349,) the nature of which does not appear, though it appears in 25 Ill. 214, (orig. ed. 233,) that it was an action of assumpsit for a breach of contract. The opinion, which was written by Mr. Justice Caton, was short, and it was thought unnecessary to consider any other fact in the case than the action of the judge, who, upon the invitation of the jury, went to the jury room and talked with the jurors on the subject of the instructions given them. It was said in the opinion: "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 has 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 *Page 555 proof to show that an error has been committed in a secret proceeding, and, in fact, out of court." This case has been cited and consistently followed in our decisions.
In Chicago and Alton Railroad Co. v. Robbins, 159 Ill. 598, the court, in response to a note from the foreman of the jury inquiring whether damages should be assessed to the commencement of the suit or up to the present time, wrote on the same note, "Up to the present time," and sent it back by the bailiff who had brought it to him. The court, while holding that the answer stated the law correctly, reversed the judgment for the giving of it, and in doing so quoted the opinion inCrabtree v. Hagenbaugh, supra, and also quoted Fisher v.People, supra, Sargent v. Roberts, 1 Pick. 337, andO'Connor v. Guthrie Jordan, 11 Iowa, 80, and cited Kirk v.State, 14 Ohio, 511, and Taylor v. Betsford, 13 Johns. 486. InCity of Mound City v. Mason, 262 Ill. 392, it was held error for a trial judge to hold any communication with the jury in regard to the instructions in the case except in open court, and that it was immaterial whether the instructions given were right or wrong. People v. Beck, 305 Ill. 593, decided the question the same way.
There are many cases in other States to the same effect.Sargent v. Roberts, supra, was decided by the Supreme Judicial Court of Massachusetts in 1823 and is a leading case upon this question, which has been followed by the courts of many States. In that case the foreman of the jury sent a note to the judge informing him that the jury could not agree and awaited his directions. The judge replied in writing, saying that he was unwilling that the jury should separate and giving them such directions as would enable them to reconsider the case in a more systematic manner. After this a verdict was rendered in favor of the defendant. The court said: "As it is impossible, we think, to complain of the substance of the communication, the only question is whether any communication at *Page 556 all is proper, and if it was not, the party against whom the verdict was is entitled to a new trial. And we are all of opinion, after considering the question maturely, that no communication whatever ought to take place between the judge and the jury after the cause has been committed to them by the charge of the judge unless in open court, and, where practicable, in the presence of the counsel in the cause." So, in deciding a case in which the circumstances were similar, the Supreme Court of Iowa said in O'Connor v. Guthrie Jordan,supra: "If further instructions are to be given to the jury, though the same in principle as those already given, the parties have a right to require that they shall be given in open court, that an opportunity may be afforded to know what they are, except to them if desired, and ask others explanatory, if deemed necessary. Indeed, the necessity for adherence to this practice with strictness is so manifest that argument in support of it is quite unnecessary. It may, at times, it is true, be attended with inconvenience, but better so than permit a practice so liable to abuse and so much in conflict with the rights of parties litigant."
In State v. Murphy, 17 N.D. 48, the trial judge, being informed that the jury, or some of the jurors, wanted to communicate with him, went to the jury room about 8:30 or 9:00 o'clock in the evening, rapped on the door, and, upon its being opened, stepped inside, leaving the door ajar, and while standing in the open space said to the jury: "Good evening, gentlemen. I understand you want to see me. Have you agreed?" The foreman answered: "No; I think we cannot agree." The judge then, after a pause of a second, replied: "I will ask you to consider the matter further. Good night," and thereupon withdrew and closed the door. In a short time the bailiff reported to the judge that the jury had agreed. The court, in the consideration of this action of the judge, said: "As to the purity of the intentions of the judge in going into the jury *Page 557 room in this case and there having the brief communication with the jury no certificate or proof is necessary so far as this court is concerned, as it well knows that his uprightness and sincere desire to be absolutely just and fair in all cases are beyond question. That admitted fact, however, does not meet the question before us, which is, Did he do that which was beyond his judicial functions in respect to the case? We are forced to the conclusion that he did. His presence in the jury room for any kind of communication with the jury is not contemplated by any provision of the statute. The opposite is the plain inference from the statute. All communication to the jury in open court is subject to exception by the parties if deemed improper. If any communication is made to them in the jury room in the absence of the parties no opportunity is afforded for objections and exceptions at the time. The open court is the place for communications to the jury in the presence of, or on notice to, the attorneys. The jury room is for the jury alone, and no communications are allowed with them in the room except upon orders from the court through the officer in charge of them, who is permitted to ask them whether they have agreed upon a verdict. All communications to the jury in reference to the case should be made in open court and all communications to them in the jury room avoided. In this way all distrust and fear that something improper is said or done will be without foundation and every act be subject to exception and review. Any communication by word or writing not in open court affects the efficiency of jury trials as a means of accomplishing justice after giving all parties full opportunity of being heard at all stages of the trial. A strict compliance with this practice of having all proceedings in court in the presence of counsel or notice to them, unless waived, is better than to countenance violations thereof unless prejudice is shown. The State urgently insists that no prejudice could have resulted from *Page 558 what was done or said in this case, but we shall not consider that question. However, the fact that the foreman said that he thought they could not agree when the judge first spoke to them and that they did agree in five or ten minutes thereafter would be a stubborn fact for consideration if we entered upon an inquiry as to the effect upon the jury of the words spoken to them and the visit to the room. We think that any communication in this way as to the case should be prohibited and held prejudicial. It is against the policy of the law to indulge in secret communications or conferences with the jury or with jurors in reference to the merits or law of the case. To determine, in each case, whether prejudice resulted would be difficult, if not impossible, and justice will be better subserved by avoiding such communications entirely. The authorities are practically unanimous in condemning such communications and in holding them prejudicial as a matter of law."
In State v. Wroth, 15 Wn. 621, the court said: "In the discharge of his official duties the place for the judge is on the bench. As to him the law has closed the portals of the jury room and he may not enter. The appellant was not obliged to follow the judge to the jury room in order to protect his legal rights or to see that the jury was not influenced by the presence of the judge, and the State cannot be permitted to show what occurred between the judge and the jury at a place where the judge had no right to be and in regard to which no official record could be made."
In Havenor v. State, 125 Wis. 144, the court said: "These rights are clearly of an important nature and affect the substance of a jury trial and the right of a party to be heard or to bring in review every transaction of the court's proceedings. For the attainment of the best administration of justice, the law requiring that all proceedings of court be open and public and in the presence of the parties or their representatives must be strictly enforced, *Page 559 and in case of any infringement of this policy parties are not to be put to the burden of showing that it in fact injured them, even though it be manifest that no improper motives prompted the acts complained of."
Other cases in which it has been held to be error where any communication of the judge with the jury or with a juror or jurors, either personally in the jury room or by written communication or telephone, after the retirement of the jury from the bar, in the absence and without the knowledge of counsel, has been held to be error for which the judgment must be reversed, without regard to the innocent or injurious nature of the communication, are Hoberg v. State, 3 Minn. 26, Coolman v. State, 163 Ind. 503, State v. Alexander, 66 Mo. 148,State v. Bland, 9 Ida. 796, Grace v. State, 147 Ga. 672, State v. Ashley, 121 S.C. 15, and Watertown Bank and Loan Co. v.Mix, 51 N.Y. 558.
The principle decided in all these cases is that announced inSargent v. Roberts, supra, and the four decisions in which we have made the same announcement, that no communication whatever ought to take place between the judge and the jury after the cause has been committed to the jury by the charge of the judge unless in open court, and, where practicable, in the presence of the counsel in the cause, and that, independent of its effect upon the jury, the judgment should be reversed for the simple reason that the communication did take place, and that no inquiry will be tolerated as to whether any harm was actually done. The defendant had a constitutional right to a public trial and to be present at every step in such trial, and, as was said in State v. Ashley, supra, having reached the conclusion that the mere fact of the communication was a violation of this right, we find it unnecessary to consider whether any errors of law occurred in the substance of the communication. However, it is clear that whatever did occur was prejudicial to the defendant. We have not the form of the verdict before us because it was not included in the *Page 560 bill of exceptions. We know only that it was a form of verdict of guilty of manslaughter, and the jury had it before them in the same manner as the other four forms of verdict, and considered it, and were justified in considering it, as a part of the instructions given by the court. Their inquiry was whether the instructions applied to that form of verdict. The jury had that form of verdict, as well as the other forms of verdict, all attached together by a clip, and naturally might be expected to want to know what it had to do with the case and what their duty was in reference to it, hence their inquiry. The court withdrew the manslaughter form of verdict, and without any explanation to the jury sent back the other four forms, with an oral notice to the jury that there were no further instructions. All this occurred in the absence of the plaintiff in error and his counsel. There can be no pretense of justification of any such communication between the judge and the jury not in open court and not in the presence of the plaintiff in error and his counsel. The jury had the manslaughter form of verdict, given apparently by the court, the officer took it to the judge, who kept it and returned the other four forms of verdict with the oral message sent by the officer that there were no further instructions. This was a modification of the instructions out of court in the absence of the accused, with no opportunity for him to ask any further instruction which he or his counsel might deem necessary to protect his rights, and the court's opinion holds that the accused, to obtain a review of this unconstitutional invasion of his rights, must be put to extraneous proof to show that an error has been committed and that he has been injured in a secret proceeding, and, in fact, out of court. Whether prejudice could or could not have resulted to the plaintiff in error from the action of the judge in withdrawing the form of verdict and sending word to the jury that there were no further instructions is not a question for consideration in this connection. *Page 561 However, the record indicates that the jury had not agreed and were considering the manslaughter form of verdict in connection with the instructions when the communication was sent to the judge, and the fact that shortly after the communication of the judge to the jury a verdict was agreed on, would be, as said in the similar case of State v. Murphy, supra, a stubborn fact for consideration if an inquiry were entered upon as to the effect upon the jury of the communication between the judge and the jury. The jury had been out more than twenty-four hours and had not agreed but were considering the manslaughter form of verdict and desired further instruction from the court. To their inquiry the court answered that there were no further instructions and withdrew the manslaughter form of verdict. Almost immediately after the judge's communication — "very shortly," in the words of the bill of exceptions — the jury returned a verdict of guilty of murder, fixing the lowest penalty under the law. These facts show clearly the effect of the judge's communication in hastening the action of the jury, and, under the authorities which have been cited, the court's action was in violation of the right of the defendant to be present at every stage of the trial and vitiated the verdict.
If this single case were the only one to be affected by this judgment it might not be a matter of serious importance, but it is of serious importance if this case becomes a precedent. A strict compliance with the practice of having all proceedings in court in the presence of the accused and his counsel, with an opportunity to be heard at all stages of the trial, is a fundamental requirement of a jury trial in this State which has been maintained by an unbroken line of decisions. It is against the policy of the law of this State to indulge in secret communications between the judge and the jury, and for the failure to observe this fundamental requirement in jury trials, the judgment, in our opinion, should be reversed. *Page 562