53 So. 415
Miss.
1910
Anderson, J.,

after, stating the facts as above, delivered the opinion of the court.

Has the appellant had a trial by an impartial jury, guaranteed to him by the twenty-sixth section of the constitution? In Lamar v. State, 64 Miss. 687, 2 South. 12, Judge Campbell, delivering fhe opinion of the court, used this language: “The legal theory of a trial by jury is the selection of an impartial body from the county, and its trial of the case free from any influence except that produced by the testimony and law and legitimate-argument, and any subjection of the jury to any other influence is carefully guarded against. Twelve men must concur in pre-' ferring a charge of felony before one can be held to answer, and twelve men elected, impaneled, and sworn to try the issue joined must concur in a verdict of guilty before the humblest can by our law be deprived of his liberty; and such is the jealousy with which trial by jury is guarded that, when it is made to appear *838that anything has occurred which may have improperly influenced the action of the jury, the accused will b© granted a new trial, although he may appear to be ever so guilty, because it may be said that his guilt has not been ascertained in the manner prescribed by law, and every one is to' be judged by the law.”

It is a matter of common knowledge that jurors, as well as. officers in attendance upon court, are very susceptible to the influence of the judge. The sheriff and his deputies, as a rule,, are anxious to do his bidding; and jurors watch closely his conduct, and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if. known, often largely influences their verdict. He cannot be too careful and guarded in language and conduct in the presence of the jury, to avoid prejudice to either party. 21 Ency. P. & P. 994, 995, and notes. The court will not stop to inquire whether the jury were actually influenced by the conduct of the judge. All the authorities hold that if they were exposed to improper influences,'which might have produced the verdict, the presumption of law is against its purity; and testimony will not be-heard to rebut this presumption. It is a conclusive presumption.

The record in this case acquits the judge of intentional wrong; but, notwithstanding, what occurred was calculated to influence-the jury against the appellant.

Reversed and remanded.