John Scott, hereinafter referred to as defendant, was convicted of the crime of Manslaughter in the First Degree in the District Court of Muskogee County, and appeals.
Since this case must be reversed and remanded, I deem it unnecessary to set forth a summary of the facts adduced on the trial and I will only deal with those assign*274ments of error which require a reversal in the instant case.
While Judge Bussey, in his dissenting opinion, places significance on the fact that the defendant waived his last peremptory challenges and accepted the jury, I think Justice Mosk, Supreme Court of California, in Maine v. Superior Court of Mendocino County, 68 Cal.2d 375-, 66 Cal. Rptr. 724, 438 P.2d 372, 375, provided the explicit statement for this type situation, when he related in his opinion in that case:
“Defense counsel * * * is placed in an unnecessarily awkward position: unless he exhausts all his peremptory challenges he cannot claim on appeal, in the absence of a specific showing of prejudice, that the jury was not impartial. Yet, convinced that he must go to trial because his motion for a venue change was at first denied and in all likelihood will not ultimately prevail,' he may fail to use every peremptory challenge sensing that the jurors he has examined may be comparatively less biased than others who might be seated were his peremptory challenges exhausted [citation omitted]. In an antagonistic atmosphere 'there will remain the problem of obtaining accurate answers on voir dire — is the juror consciously or subconsciously harboring prejudice against the accused resulting from widespread news coverage in the community.’1 We can only conclude that the naked right to renew the motion for change of venue is not an adequate remedy at law to require denial of a mandamus petition.”
In that case the California Court granted the writ of mandamus requiring a change of venue because of the prejudice caused by wide spread news coverage in the locality of the trial.
In this case, the defendant offered valid affidavits from ten persons, from different areas of the County, all of whom expressed the opinion in their affidavit that the defendant could not receive a fair trial in Muskogee County, because of the reports and stated opinion of the news media. Three of those persons appeared and testified at the hearing in support of defendant’s application for change of venue.
In contrast, the district attorney filed six counteraffidavits and at the hearing offered the testimony of two persons, each of whom expressed their belief that the defendant would receive a fair trial, notwithstanding the news media statements. Considering the totality of the circumstances surrounding defendant’s request for change of venue, we are of the opinion the proof offered by the district attorney was not sufficient to overcome defendant’s proof of the possibility that prejudice might have been generated from the newspaper articles.
I think Judge Bussey is correct in his reference to Shapard v. State, Okl.Cr., 437 P.2d 565, except that I believe where a reasonable possibility of prejudice is shown to exist the change of venue should be granted after which the trial should proceed without further delay. Shapard was granted one change of venue.
In this case personalities were of such nature which, coupled with possible preconceived opinions imposed by the press, prejudice could have been easily caused against this defendant. The record also reflects that all members of the jury had read something about the case in the newspaper. Admittedly, each stated that his opinion was not fixed, and that he could reach a decision based upon the evidence. But where a reasonable possibility of prejudice is shown to exist, concerning wide-spread pre-trial publicity, and its possible effect on the jury panel is shown to exist, then discretion seems to me to dictate the change of venue. In this case I believe such application for change of venue should have been granted.
I admit also, that many applications for change of venue are filed merely for the *275purpose of making a record, but in those instances the defendant most often does not go to the trouble to produce ten affidavits, which are then supported by witnesses who testify to such opinion, when his application comes on for hearing as was done in this case. In this respect, the United States Supreme Court stated in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; that appellate courts must make their own evaluations of the circumstances and not defer unduly to the discretion of the trial judge.
I am of the opinion that the trial court erred in refusing to grant a mistrial because of an unauthorized communication between the bailiff and the jury. With reference to defendant’s motion for mistrial, I readily accept the statement of Tapedo v. State, 34 Okl.Cr. 165, 245 P. 897, but from the record in this case, it is not made entirely clear whether or not anything else was said between the bailiff and the jury, other than with reference to coffee. Such being the case, the prejudice is presumed, and as I review the record that presumption was not overcome. As this Court recited in Foreman v. State, Okl. Cr., 370 P.2d 34:
“It will be presumed, in absence of clear, distinct, concise and convincing proof to the contrary, that rights of defendant were prejudiced by violation of statute forbidding illegal communication with jurors during their deliberations.”
I think the wording of Title 22 O.S.A. § 857 is quite clear, when it provides:
“After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask whether they have agreed upon a verdict, and so agreed, or when ordered by the court.” [Emphasis added]
The bailiff’s statement, “One of the jurors said something about wanting coffee, but I don’t think it will be long before the jury will return a verdict.”, coupled with all the other conversation which took place in the jury room between the bailiff and members of the jury, as testified to at the hearing on defendant’s motion for new trial, is’ enough to my way of thinking to cast suspicion on the verdict. Clearly, the statute was not complied with, and this Court has long claimed that such compliance must be strict.
This Court stated in Foreman v. State, Okl.Cr., 370 P.2d 34, 37, — while quoting from Ridley v. State, 5 Okl.Cr. 522, 526, 115 P. 628, 630:
“It is of the utmost importance that jurors and court officials should be held to a strict observance of the provisions of law prescribing their procedure and duties, and their conduct should be such that no possible suspicion can attach to them of having acted in a manner prejudicial to the accused, or in his favor.”
After reviewing the record in this case, I am of the opinion the provisions of Title 22 O.S.A. § 857 were not sufficiently met, and for that reason — if none other — this case should be reversed. Consequently, I believe this case should be reversed and remanded for a new trial, with directions that defendant be granted a change of venue.
NIX, P. J., specially concurring. BUSSEY, J., dissents.. Footnote 6, in Cal.S.Ct. opinion, refers to Reardon Report, at p. 127. ‘‘Fair trial v. Free Pressand also 38 So.Cal.L.Rcv. 672.