dissenting. On the state of the record in this case, I ana unable to join with the majority in deciding that the error complained of is harmless.
As was stated in Jones v. State (1875), 26 Ohio St. 208: “It was the right of the plaintiff in error to be present at each and every instruction given to the jury as to the law of the case. This right was denied to him * * * and without inquiry as to the correctness of the instruction so given in his absence, it will be presumed that he was prejudiced thereby.” (Emphasis added.)
Further, in State v. Grisafulli (1939), 135 Ohio St. 87, this court determined that a harmless error statute could not be applied, where, as here, it is a situation “ * * * which' discloses the clear disregard of a constitutional prerogative.”
A court should not communicate with a jury in their deliberation room, nor should a court give the appearance by any action that any part of a trial is veiled in secrecy.
In my opinion, this is a situation where the possibility of harmless error cannot be considered because the probabilities for prejudice are so great as to mandate reversal.