(after stating the facts). No error was committed by the trial court in refusing appellant’s prayer for instructions numbered B and F, 4 and 23. Instructions B and F were argumentative, and, in effect, amounted to instructions upon the weight of the testimony, telling the jury what importance should be attached to the evidence or lack of evidence, which this court has said should not be done. Bullard v. State, 159 Ark, 435. Moreover, these instructions were fully covered by instructions numbered 16, 17, 18, 22 and 23, given by the court.
Instruction No. 4, refused, was likewise fully covered by instruction No. 20, correctly given by the court upon its own motion, and it was unnecessary to give more than one instruction of the law applicable to the particular facts. Housely v. State, 143 Ark. 425, 252 S. W. 584.
Neither was error committed in refusing to give requested instruction numbered 23, telling the jury “if any of the testimony in the case is susceptible of two constructions, one of guilt and one of innocence, then it is your duty to give it the construction of innocence.” The court correctly instructed the jury on the.law relating to weighing the testimony, the presumption of innocence and the question of reasonable doubt, and there -was no attempt to prove the guilt of defendant by inferences to be drawn from facts and circumstances established by the testimony. DeShazo v. State, 120 Ark. 494, 179 S. W. 1012; Cooper v. State, 145 Ark. 403, 406, 224 S. W. 226; Wawak and Vaught v. State, 170 Ark. 329, 279 S. W. 997.
Relative to the assignment that error was committed by the trial court in permitting the instructions, two oral instructions not transcribed, hot included, sent to the jury room without the consent of appellant or his counsel, it will suffice to say that, since the case is to be reversed on another point or assignment of error, and remanded for a new trial, at which no such ground for objection is likely to occur, we do not find it necessary to pass upon it now.
This court has concluded, however, that error that calls for reversal of the judgment was committed by the trial court in his conversation with, or instruction to, the foreman of the jury in the hall outside of the jury room, and away from the presence of defendant and his attorneys. The court, in explanation of this incident as set out in the statement, said:
“I told him, in answer to -his inquiry, that the likelihood, of a parole was outside of their consideration of the case, and they should not let that weigh with them at all, and I told him at that time to mention that fact to the jurors, that they shouldn’t take into consideration the likelihood of pardon in the case at all, because it wasn’t a matter for them to determine. Just fix the punishment, whatever it was, or what they thought should be fixed.”
Section 3192, Crawford & Moses’ Digest, provides how a jury, after it has retired for deliberation, shall acquire information on any point of law or about any part of the evidence, if there is disagreement, that they must require the officer to conduct them into court, where the information required must be given in the presence of, or after notice to, the counsel of the parties. Its provisions are mandatory. The jury might well have con-eluded that this instruction was an expression of the court’s opinion upon the weight of the testimony and the guilt or innocence of the defendant by his saying, “Just fix the punishment, whatever it was, or what they thought should be fixed.”
In Wawak and Vaught v. State, 170 Ark. 329, the court said: “It is, of course, not only improper, but is error calling for the reversal of the judgment, for the court to communicate with the jury, in the absence of the defendant, any directions in regard to their verdict. Hinson v. State, 133 Ark. 149; Pearson v. State, 119 Ark. 152.” Neither could its harmful effect be relieved against by the testimony of the jurors, after the verdict was rendered, that they had already reached a verdict of guilty before the communication- or instruction was received, since the jury had the right to consider or reconsider the question of guilt until the delivery of the verdict, and the jurors are not permitted to testify about such matters, anyway.” Kindrix v. State, 138 Ark. 594, 212 S. W. 84.
For the error designated the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.