*1 appear fb-r all for them and stated that he answered permit to be other in the District. To landowners deny appellants their done, circumstances, would rights. constitutional process requirement due “5. The constitutional ‘ jur.
gives
party
(See
right
Am.
Con-
each
to be heard.
* * *
607).
§
Law,’
stitutional
may
judgment
ren
“6.
In order that a valid
every per
proceeding
quasi
rem,
dered in
in rem or
legal
notice
son who has
interest
the res must have
an
(See
opportunity
proceeding
to be heard.
446).”
‘Judgments,’
al., Pitts-
O’Hara, et
§
Am. Jur.
Company, Appt.,
174 A.
ton
42 S. E.
Accordingly, the cause decree reversed and appeal to declare remanded direct directions on with proceedings in foreclosure suit cancel, void, proceedings consistent No. further 6130, and for option. with this cross-appeal.
Affirmed
concurs.
Justice
McFaddin
Bell
v. State.
Opinion March delivered *2 Sharpe, appellant. Harold for Gentry, Attorney Thorp
Tom and General Thomas, Attorney appellee. Assistant General, appellant, Justice. The Leodis McFaddin, Ed. F. first, convicted Bell, was crime of murder in the imprisonment; sentenced to life and he prosecutes appeal. carefully
We have studied the record and find no except the one unfortunate involving incident a between Jury; communication and incident necessitates a and that reversal. After the evi- given, had been concluded, dence the instructions arguments made, retired to consider its while the was deliberating, thus verdict; September there 14th, occurred the incident which is Assignment referred to No. 5 in the Motion for New follows; reads Trial, which
“(5) during jury’s That course of the de- Judge of jury the Court went liberation into the jurors they going if were room to ask to reach the noon hour and there verdict while before they jury gave life was asked the defendant imprisonment get. out, would he able to definitely replied them that he could not tell of the Court through processes normally speaking, various but that that etc., of sentences, the Parole Board—commutations eight usually don’t over seven or life termers years, serve they instances which served there are life that this indicates that term; the full trying long term it would determine take how years eight seven or be sure the defendant served penitentiary, did not arrive their the verdict *3 was on fact that the defendant the basis of the guilty of His that statements murder; first of although Judge, to were be, intended not Honor, highly prejudicial defendant.” Sep- overruled on
The for New Trial Motion was appellant was be- ’-s-counsel tember when the 16th, and Exceptions settled the Bill of fore the Court to have a statement on dictated 5th, October the Trial Court Exceptions, part which Bill and which a of became copy in full: statement we now request for the defendant who of counsel “At Supreme appellant and was who will be the makes the case not counsel at the trial of open following court for the record statement presence day of counsel October, 5th this, attorney: prosecuting “The for the defendant jury jury room to consider retired to in this case o’clock. The Court 10:30 their verdict between 11:00 jury 12:00 out and at o’clock while was recessed determine wanted to thereafter, a little I bit noon, stay during jury would me to over want whether the adjourn they going were whether hour or noon for the looked around for lunch. their deliberations I room so I walked in the court not sheriff and he was just jury room, the court off which is door, to the room opened opened I it. the door When knocked on stopped. jury room I door discussion all jury door with but stood enter the room, open jury they door asked foreman of the .if myself keep during wanted me to available the noon hour they go receive their verdict or did want to- -to lunch themselves. they The foreman informed me would let me in a few know minutes. started I to leave and jurors one of ques- if asked me he could ask me a may question tion. I ‘You ask said, a but I doubt ’ any way I can answer He it. then asked if there was get serving man could out of a life sentence who had been spur sentenced for life. On I moment, an- by question saying: his happen swered ‘Yes, does they get present system having out under our after years.’ juror served from seven to ten same then they happens asked ‘How do do and I it?’; said, ‘It twenty-one often that commute life sentence years years after the defendant has served seven or more parole. and then him let out on As matter of fact my average it is information that served time years life termers in Arkansas for the last several has years, always happen been seven it does not however, who there are those serve rest of their lives type under sentence.’ That was all of the dis- nearly cussion for word word as I can remember it. go I never did into the room I and never did hear *4 jury’s adjournment of the discussion, either about for or lunch about the case. I then returned to the fully court room informed counsel and for the defendant just as to what had occurred. motion for
“No a mistrial was made at time the matter was included this motion for new grounds argued trial as one of therefor, was and being opinion prejudicial of the that it was not overruled for motion new trial.” integrity We admire the candor and of character of Judge, unhesitatingly who made the above foregoing we statement; but cannot affirm this case thereby put stamp judicial approval of our Jury, communications between such future lest communications such should be con- judges a for other sidered wise course to follow. Our position very confronted much like that which here is Byler S. W. us trial —and unknown it discovered after the case was hy parties the trial —that and all before related within deceased Solely affinity. of such fourth tionship, rela- and be- reversed conviction. The we late speaking for the Smith, Frank loved Justice G-. Mr. Court, said: may asked difference
“It be what therefore, presid- relationship existed between that this makes ing will ‘It be is, The answer and the sheriff? precedent an the same a for recorded example . . . into the state. It cannot be.’ will rush may be unfortunate that the will have
“It case single think it better that case should retried, be but we improper precedent approve for than to an retried be trial of future eases.”1 one case to be know it better for is we Likewise, improper approve for than retried may precedent of future cases. used in trial be error, committed are convinced that the Trial We prejudicial. and that the error was was not waived; which Stats, § 248 of § Error. 43-2139 Ark. I. says: Procedure, Code of Criminal if there deliberation, retires “After any part disagreement them as to between is a point they informed on desire or evidence, require officer to conduct them must of law, brought being Upon into court, court. their into information given presence required of, must be parties.” the counsel of the to, notice after S. W. In Wacaster *5 considering Jury verdict, Trial still its while Jury conversation Judge had of the foreman in the absence of room, outside of in the hall attorney, conversation in which and his defendant 1 State, 749, 379, W. Chief Justice Bunn Stroope Ark. 80 S. v. 72 quotation. thought as that contained expressed the same
309 the Court discussed with Jury the foreman of the parole. likelihood of a quoted heldWe that the Statute mandatory, above was and that the conversation between the Trial and the foreman was error; quoted we reversed the conviction. We from Wawak v. State, 170 329, Ark. 279 S. 997,W. follows:
“ only ‘It improper, is, course, but is error calling judgment, for the reversal of the for the Court Jury, with communicate in the absence of the ” any regard defendant, directions to their verdict.’
In addition to the cases cited State, in Wacaster v. (supra), by there are other cases decided discussing all Court, this matter of communications be Jury, tween the Court and either in the absence of any except the accused or in manner with accordance § 43-2139Ark. Stats. Some of these cases are: Kinnemer v. Stroope 66 State, 49 Ark. 206, S. W. 815; State, v. 72 749; Ark. 80 379, S. W. Pearson v. 119 State, Ark. 152, 178 Scruggs W. 914; S. v. State, 131 320, 694; 198 W. S. Hopkins State, Hinson v. 149, 811; 133 Ark. 201 S. W.
State, 174 Ark. 295 State, S. W. Durham v. 361; Day W. 2d 991; S. 185 Ark. Smith v. 380; 194 Ark. 264, 106S. W. 2d 1019. also See 22 A. Annotations L. 261; R.
A. R. 104; L. and A. L. R. We conclude that the having Trial committed error in the conversation previously with the as detailed his statement copied herein. by Attorney
II. Waiver. But it is insisted Gen- might by eral that have been committed was waived defendant and his Judge immediately counsel Trial returned to Court room and informed counsel for the defendant just fully had occurred; as what and that record con- objection exception; or no tains has into the record that-no dictated Motion for Mistrial was Attorney argues From made. these General facts, objection exception, the error that in absence raise the it was too late to cannot be considered; *6 310.
question
in
the Motion for
the first time
New Trial.;
Attorney
and the
in this
General cites
connection, Dur
ham State,
507, 16
v.
179 Ark.
W. 2d
Davidson
S.
991,
State,
v.
108 Ark.
“Appellant predicate upon cannot failure of ruling make that at ask he not the time Court flagrant remarks make, unless were so highly prejudicial in to make so character as duty of the court own motion to instructed on its have ’’ not same. to consider the
In hold that the be the case we conversation bar, pur tween falls within the Juror having quoted language Judge, above: the view should have corrected it on his own committed the error, obligated not to make a for motion, and accused was already objection mal error had been com objection erased dam and an could have mitted, age had the Trial that been done. that remarks Jury upon snow,3 as ink made to were the same no or could have amount admonitions cautions Jury what the Trial the minds from erased had said. told the has cases In some procedure been paroles; course of has as to
law W. State, 204 1002, 211 Ark. S. approved. See Glover 2 451, 104 W. 2d we held v.Wells In exceptions, objections nevertheless although no there were the record for error. examination of preclude! from was not objection made until the Motion State, (supra), was not Wacaster not inform counsel of Trial, the Court did that case New for conversation, here. as was done regard Prosecut expression to statements of We used 2d ing V. 172 S. Attorney in Smith 373; anti.Pendleton v. State, 211 Ark. S. W. 2d 559.4 But the case at bar, the answers made *7 the Judge questions admittedly Trial the Juror’s made — “spur on the the moment” —were not declarations of Judge law that a could from the bench; make rather the testimony Judge’s personal answers were toas ob hearsay length servations and evidence toas of time stay some convicts incarcerated. The answers would not legally have been into admissible At evidence. best category improper arguments fall into the same as Jury,5 quoted counsel to reason the lan guage (supra), apropos from v. Wilson State, to the situation here. The- defendant did not waive the error Judge the Trial because on his own have should, motion, declared a mistrial because answers that he made Jury. to the We all are we know the human, Trial Judge spur in this “on case did of the moment” what might of us done; have calm reflection con vinces he should us that have set verdict aside when the error called to attention his Motion for New it because was error under the Trial, circum that, was not waived. stances, Prejudicial.
III.
In the statement which the Trial
previously copied
Court dictated into
record,
here-
in,
stated that he denied the new trial
being
opinion
(the
“the
Court
it
error)
prejudicial.”
was not
conclude that the
We
prejudicial.6
here involved was
The Court had instructed
only
Jury,
degree
as to
murder,
first
to sec-
but as
degree
voluntary manslaughter,
ond
murder,
and self:
stoutly
defense. The defendant had
maintained that if
certainly
he
act
he
self-defense,
did not
acted
deliberating,
passion.
Jury
heat of
was still
when
Jury
person
told the
that a
sentenced to life im-
4
point
might be
out
Other cases that
cited to
the difference between
Jury
telling
Jury
telling
the law and
the facts on sus
State,
pended
parole,
292,
are: Pittman v.
84 Ark.
105
sentence and
State,
State,
297,
71;
874; Bird
Ark.
242
154
W.
and Jones
S.
S.
v.
161 Ark.
prisonment got years. sometimes out in seven con- That grade change versation could have caused degree of the offense from murder second a seven- year sentence to first murder with life sentence. Certainly the communication made Trial progress while the were deliberations still prej- not benefit the other defendant; and, hand, rights. udiced his Judge in about another Trial
What this Court said applies with Hinson S. W. 811, high equal here: char- force to Trial “The known that cannot is so well acter of undertaking un- to exercise assumed that he was *8 Jury.”' for indi- the error But, due influence over judgment remanded. is reversed and cause cated, dissents. The Chief Justice (concurring). is a It Justice Millwee, Minor majority opinion from to determine little difficult judge defendant was on trial or the circuit whether by the was committed But it clear that error is below. judge jury going indicated, to room in the manner in attorney general conceded his brief. has so question was waived is whether the error The difficult object by appellant’s called after the matter was failure transpired reciting In what his attention. counsel’s the defendant made no counsel for the court stated that informed for mistrial” at time he was “motion objectionable state but the did not matters, court objected proce- for the to the counsel defendant whether doubt I would resolve the circumstances, dure. In these indulge presumption of the defendant in favor object although did for a not move fact, he did, that he majority’s agree conclusion I with the cannot mistrial. necessary. reaching objection In this conclu- that no overruling majority Durham v. the case of are sion saying without so. 16 W. 2d here and the same committed involved That case by opinion Chief Jus- written in unanimous court by failure to waived the error was Hart held that tice object. followed tbe rule in-numerous We have same involving penalty, of them other death cases, objected with errors which are not connection to. my opinion majority do violence to this well-settled only. rule. I, therefore, concur result dissenting. Justice, Chief The mate- Smith, Griffin undisputed. Judge Taylor rial jury are enter the facts but stood at the door and certain room, answered every questions person informed knows Arkansas questions responses true. made be These statutory judge composite are a of constitutional and power, upon law: the one to com- hand, Governor’s system parole upon sentences, mute the other. immediately Then the informed for the counsel regarding the conversation, defendant seeming acquiescence. and there was
Certainly a motion mistrial stage procedure proper. In- would have been preferred speculate on what the stead, defendant proved satisfactory, would do. If the verdict noth- judicial ing indiscretion; said would be about the so-called unsatisfactory, urged I the matter would as error. do not think that counsel for the defendant had this alter- lawyers They type in mind. are not the who native purpose. It more would conceal such a than a circum- *9 attorneys appear that these do not as counsel on stance practice appeal. Neither should unethical be ascribed attorney represents rec- defendant. who now participated I think in the trial. ord does not show that he judgment waived conduct and that the be affirmed. should v. Noblit.
Noblit 265 W. 2d 5-330 Opinion delivered March