dissenting :
I joined in granting a supersedeas in this cause, on the ground a fatal irregularity occurred at the trial in permitting the officer having charge of the jury to carry to them a message purporting to come from the judge of the court. After more mature reflection, I find no reason to change the judgment then deliberately formed.
The law is well settled, the judge, at his lodgings, has no control over the jury, and that it is improper for him to send them any communication, no matter what its character may be. If it becomes important, for any reason, to communicate with them, they should be brought into open court, in the presence of the parties. Any other rule is liable to great abuse.
Whether the officer in this instance obeyed his instructions or not, is wholly immaterial. The message delivered to the jury was given as coming from the judge, and was, no doubt, received in that belief. The effect, therefore, was the same had the judge in fact sent the identical message delivered by the officer.
It is conceded, in the opinion of the majority of the court, it was grave error that such a communication was given to the jury. Whether it was sent by the judge or not, that can not be palliated or tolerated in the proper administration of the law. But the judgment is affirmed on the ground the evidence shows the accused was guilty beyond a reasonable doubt. This does not answer the whole objection. The conclusion would be more logical, and could be more easily maintained, if the punishment in such cases was absolutely fixed by law. Such is not the case. Under our statute, in all capital cases, the jury are invested with a discretion to say what the punishment shall be—whether it shall be death by hanging, or imprisonment for life in the penitentiary.
The evidence in the record leaves no room to doubt the jury were hastened in their finding by the message delivered to them by the officer. In view of the fact the measure of the punishment to be inflicted, in case of conviction, was in the discretion of the jury, who can say they were not hastened in their verdict to the prejudice of the accused? It is the right of every one charged with crime to have the calm and deliberate judgment of the jury selected to try his cause, and the fact their deliberations may have been unduly influenced by any cause whatever, is error so prejudicial, in a case like this, that it ought to be a ground for the reversal of the judgment. It is not a mere irregularity. It may have injuriously affected the merits of the case.
For the reasons indicated, I feel constrained to enter my dissent to the judgment about to be pronounced.