SPECIAL CONCURRING OPINION
NIX, Presiding Judge:In the instant case, I concur in Judge Brett’s opinion but for an additional reason. The law as set forth in the Oklahoma Statutes provides as follows [Title 22, O. S.A. § 857]:
“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 *276be sworn to keep them together in some private and convenient place, and not to permit any person to speak or to communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.”
The record reveals there was a direct violation of this statute. The sanctity of the jury room had been invaded. The Bailiff had responded twice to the jury’s beckoning, and had, in violation of the statute, communicated with them during their deliberation.
One of the great elements of Jurisprudence that distinguished us from enemies of a democratic society, is the right to trial by jury. It not only must be preserved but rigid enforcement must be exemplified in maintaining its cloak of purity. The safeguards surrounding the sanctity of- the jury room must never be relaxed as to cast suspicion thereon. Its cloak of purity must always be kept clean.
22 O.S.1951, § 894 adds additional safeguards. It provides as follows:
“After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called.”
This writer is thoroughly familiar with the line of cases in this State which establish the rule that where illegal communication is had with a jury during its deliberation, it is presumed to be prejudicial to the defendant and the burden is upon the State to prove otherwise. However, your writer is of the opinion that the illegal invasion of the jury room during their deliberation is of greater importance than what was said or done, as the avenue was opened for improper conduct.
The defendant was placed in the position of having to rely upon the testimony of other persons as to what actually took place inside the jury room.
Learned counsel for the State insists that the defendant was not prejudiced by the Bailiff’s remarks. However, the law had closed the portals to the jury room from all communication, except that provided in 22 O.S.1951, § 894, supra.
But the law does not subject parties litigant to the disadvantage of being required to accept the statement of even the judge as to what occurred during unlawful contact with a jury at a place where he has no right to be, and where litigants cannot be required to attend.
It is the lawful right of a party to have his cause tried in open court, with opportunity to be present and heard in respect to everything transacted. It is his right to be present and attended by counsel whenever it is found necessary or desirable for the court to communicate with the jury, and he is not required to depend upon the memory or sense of fairness of the judge as to what occurs between the judge and jury at any time or place when he has no lawful right to be present. His right in this respect goes to the very substance of trial by jury. Aside from the rights of the parties, public policy will not sanction any departure from the rule which requires that all such communications shall be public, and in the presence of the parties or their counsel.
It was held by this Court in Raab v. State, 62 Okl.Cr. 361, 71 P.2d 773, 778, that:
“Not only do the Oklahoma cases uphold this doctrine, but the generally accepted view is that it is reversible error for the trial judge in a criminal case to communicate with the jury or any member thereof, except in open court and in the presence of the defendant and his counsel; the basis of such ruling being that the accused shall have the right of a pub-*277lie trial and the right to be present during all stages thereof. There are some decisions which hold that it is necessary to show prejudicial error, hut many of these cases are civil cases and many of them are based upon peculiar statutes different from what we have in Oklahoma. The oldest and one relied upon by many authorities in establishing this principle was the case of Sargent v. Roberts, 1 Pick. (Mass.) 337, 11 Am.Dec. 185. The Court says:
‘And we are of the 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 presence of the counsel in the cause. The oath administered to the officer seems to indicate this as the proper course: “He is to suffer .no person to speak to them, nor to speak to them himself unless to ask them whether they are agreed”; * * *.’ ”
The bailiff is an officer of the court and I feel assured the rule should be equally applicable and that no distinction should be made between the court or its officers. The judge’s place is on the bench, and the bailiff to guard diligently the locked door to the portals of the jury room.
The statute was violated, and for that reason, I feel the case should be Reversed and Remanded.