Opinion by
Thе appellant, Miguel Maldonado Santiago, was convicted in 1963 of first degree murder. Post-verdict motions were filed but later withdrawn and a sentence оf life imprisonment was imposed. No appeal was filed. Collateral proceedings followed which are reported in
Commonwealth ex rel. Santiago v. Myers,
Aрpellant was charged with the murder of Domingo Alvarez, who was shot in a barroom fight. The selection of the jury began on September 16, 1963, and was completed the following day, September 17, 1963. At about 2:00 p.m., on September 17, 1963, the prosecution made its opening statement. After two witnesses for the prosecution had testified, the trial court, at about 3:15 p.m., announced a fifteen minute recess. In the ladies room, during that recess, one of the alternate jurors, Anne McCarthy, in the presence of three other female jurors, reported to a female tipstaff an incident which had occurred in the ladies room during the luncheon recess several hours earlier in the day. The tipstaff, after telling the jurors not to talk about the incident with any other jurors, repоrted to the trial judge, who then informed counsel at side bar about the reported incident. Defense counsel immediately moved for a mistrial, but the motiоn was denied. The trial judge then said to the jury: “Members of the jury, a matter has come up that will take a little time. You will not be excused and you will not be recеssed for the *267 time being. Arrange for the defendant to be taken into my chambers with the interpreter.”
The alternate juror was then called into chambers аnd reported the following incident which occurred during the luncheon recess just before she was sworn as a juror: “We came back from lunch and we walked in and didn’t really know what time it was, another girl and myself, who was excused, or rejected I guess, and we turned around and looked at the clock and said, 'wе have lots of time, it is only ten after one,’ and this woman sitting there said, 'no, you don’t have lots of time.’ I said, 'well, it starts at 1:30,’ and she said, 'yes,’ and then that was all that was said, and with nothing else, she said, ‘he has killed an innocent boy and it isn’t the first one he has killed,’ and I looked at her and we just walked away from her. She said, '/ am a witness’ ” (Emphasis added.)
The alternate juror said that she did not know the witness’s name, but could identify the witness who was sitting out in the courtroom. The trial court indicated to counsel that the alternatе juror would be excused but again denied defense counsel’s request for a mistrial. The trial judge then called into chambers, one at a time, the three jurоrs who were in the ladies’ room when the alternate juror reported the incident to the tipstaff. One juror said that she heard the alternate juror say thаt “she was approached by one of the witnesses saying that the defendant had killed somebody else, too, or had shot somebody else — wasn’t that it?— I thоught you said shot or killed — killed somebody else.” The second juror said she heard the alternate juror say “that she was talking to a lady in the back and that she said that he was a killer and that he had killed somebody else.” The third juror said “she [the alternate juror] said that this woman . . . started talking about the defendant and said that this wasn’t the first time that he had been in trouble and, I don’t know, she made *268 some remarks about him to [the alternate juror].” Two of the three jurors, when questioned, indicated they would not be prejudiced against the defendant as a result of what they had heard. The third juror also indicated that she would not be prejudiced, but at one point when questioned by defense counsel about the possibility that what she had heard would make a difference, the juror said “well, maybe.”
The alternate juror was then excused from the jury but defense counsel’s renewed request for a mistrial was denied. After the alternate juror had identified a prоsecution witness as the person who made the prejudicial remarks, the prosecuting attorney informed the trial judge that the witness identified was “not an аbsolutely mandatory witness and doesn’t need to be called.” The record does not specifically indicate whether the witness was later called. The witness is not identified in the record but, apparently, the witness was not called by the prosecution during the trial.
We conclude that defense counsel’s request for mistrial should have been granted. “The minimal standards of constitutional due process guarantees to the criminally accused a fair trial by a panel of impartial and ‘indifferent’ jurors. . . .”
Commonwealth v. Stewart,
In
Stewart
and in
Bobko,
convictions were reversed even though there was no certainty thаt any improper prejudicial information had actually been communicated to any jurors. In those cases, contacts with the jury occurred which may have resulted in the communication of prejudicial information to jurors. In
Stewart,
the victim’s father had been on the panel of jurors from which the trial jury had been selected, but there was no evidence that he had communicated with any of the trial jurors. In
Bobko,
the jury had been given a trial booklet indicating that the defendant and his co-defendants were under indictment for charges unrelated to those for which the jury had been selected, but there was no evidence that any jurors had read the trial booklet. In
Turner v. Louisiana,
In this case, unlike
Stewart, Bobko,
and
Turner,
we know, without speculation, that three jurors during the trial did receive improper prejudicial infоrmation. In
Marshall v. United States,
In this case the remarks heard by the three jurors would not have been admissible during the trial, and their admission, over objection, would have constituted reversible error. The prejudice to the appellant is no less when the remarks are made outside the courtroom. Thе appellant was entitled to an impartial and indifferent jury. His motion for a mistrial should have been granted. There is no need to consider other issues by the appellant.
Judgment of sentence reversed and a new trial awarded.