83 So. 2d 818
Miss.
1955
Gillespie, J.

Aрpellant was indicted, tried and convicted of an assault with intent to kill and murder. The indictment charged that the appellant “. . . an assault did make in and upon the body of one Jack Lee Kizziah, Jr., with his hands, and did then and there take hold оf and choke him, the said Jack Lee Kezziah, Jr., with means and force likely and sufficient to produce death. ’ ’

The court reporter died before his notes were transcribed and the testimony is before this Court in the form of a spеcial bill of exceptions. On March 6, 1955, appellant was living with his wife and two children, one child being about a year old and the other a child about two months old. They lived in Vicksburg. The wife’s family came for a visit, a family fight followed, and the wife took the smallest baby and went with her father to Issaquena County. Jack Lee Kizziah, Jr., was left with his father. On March 10, 1955, in response to a message sent by the appellant to his wife, the wife returned to Vicksburg, accompanied by her father and brother. They first went to the county prosecuting attorney’s office, and then to the home of appellant’s parents, where they secured custody of Jack Lee Kizziah, Jr., and returned to the prosecuting attorney’s оffice after leaving a message for the appellant to meet them there. The appellant met them at the eounty attorney’s office, and after a conference, all went down the steps of the courthouse in Vicksburg to the ground floor lobby. No reconciliation had been reached and the appellant’s wife had Jack Lee Kizziah, Jr., in her arms. "When they reached the foot of the stairs, appellant grabbed hold of the child, who was in his mother’s arms, and said, “give me the baby, I’ll kill him,” whereupon appellant took hold of the child either about the head, neck or body. His wife screamed, his father-in-law and brother-in-law were pulling and beating on appеllant while he was holding on to the child. They scuffled about the lobby of the courthouse into the chancery clerk’s office for a period of some three to five minutes. Appellant had in his hand an unopened pen knife, but there is no proof that he made any attempt to use this knife as a weapon. The sheriff and two of his deputies heard the commotion, went from the sheriff’s office to the chancery clerk’s office, and forceahly subdued appellant and took him to jail. On the way to the jail, appellant said: “I know if I kill my baby they would kill me, hut I would rather be dead with him than for her to have him. If I had a gun I would kill the whole bunch now. ”

At the termination of the fight, the baby was crying, had a bruise on his fоrehead, a scratch on his back, and bruises on the cheek and nose. It appears that the child was not seriously injured and was not carried to the doctor until the following day. The sheriff and his ‍‌‌‌​​‌​​‌​​‌‌​​​‌‌​‌​‌​​‌‌‌‌‌‌​‌​‌‌​‌‌​‌​​‌​‌​‌‌‍deputies testified that they had to рry the appellant loose from his baby. Appellant’s version was that he was only trying to get possession of his baby, that he had no intention of harming the child, but only wanted to keep his wife from taking the child away from him.

Appellant assigns as error the refusal of the lower court to admit testimony of another cause of marks and bruises on tbe child after tbe state bad introduced evidence that tbe marks of violence were tbe result of tbe assault on tbe child. Testimony was offered by appellant that tbe child received bruises from a fall from a bicycle two days previous to tbe alleged crime. Objection was sustained to this evidence. Such evidence would tend to bolster appellant’s version that be did not use excessive force in trying to take.the child from bis wife and that be did not intend to barm bis child; likewise, such testimony would tend to impeach tbe state’s witnesses as to the injuries inflicted on tbe child by apрellant. We bold that this evidence should have been admitted.

Appellant contends that be should not have been convicted of assault with intent to kill and murder under tbe proof in this case. It is true that appellant said, “give me tbе baby, I’ll kill it,” and later made statements consistent with an intent to kill. Of course, such threats and statements are admissible on tbe question of intent, but tbe means and force actually used are tbe principal factors on tbe question of intent. Tbe State does not contend that appellant tried to use tbe pen knife as a weapon. A baby could easily be killed with tbe bands, either by striking it or choking it. Tbe means were sufficient to produce death, but tbe forcе used was not sufficient to produce death or great bodily barm. Appellant bad bold of tbe child while tbe parties involved scuffled across tbe courthouse lobby into the Chancery clerk’s office, for a period of three to five minutes. Tbe child was crying when it was over. Tbe charge was that tbe intent, design and attempt was to choke tbe child to death, but tbe only injuries were bruises on tbe forehead, cheek, and nose, and a scratch on the nеck, and none of these injuries were shown to be serious.

The child was not taken to a doctor until tbe next day and whether this was for ‍‌‌‌​​‌​​‌​​‌‌​​​‌‌​‌​‌​​‌‌‌‌‌‌​‌​‌‌​‌‌​‌​​‌​‌​‌‌‍treatment or examination was not shown. If tbe State’s witnesses were cor rect in stating that appellant had hold of the child during the time the scuffle took place, the appellant could easily have killed or at least seriously injured the child. We think the facts clearly show that appellant was not trying to kill the baby. An intent to kill and murder is the gist of the offense of assault and battery with intent to kill and murder; and where it appears that the accused had available the means to produce death and the opportunity to use such means, but failed tо make use thereof in a manner likely to produce death or great bodily harm, such circumstances negative an intent to kill and murder. Accordingly, we hold that the facts do not justify a conviction of assault and battery with intent to kill аnd murder. Cf. Griffin v. State, 196 Miss. 528, 18 So. 2d 437, and Daniels v. State, 196 Miss. 328, 17 So. 2d 793.

Appellant assigns as error the action of the lower court in leaving the jury under the care of the sheriff and his deputies, who were material State witnesses.

The sheriff and two of his deputies, Smith and Wicker, were eyе witnesses to the alleged crime. Each of them was a vital State witness at the trial. Smith and another were sworn in as jury bailiffs. On the second day of the trial, appellant' made a motion for a mistrial on the ground that the jury had been in сharge of a material witness. Proof was taken on the motion. It was shown without contradiction that deputy Wicker had testified for the State the previous day; that he assisted the jury in various ways, running errands, taking messages, and was in contаct with the jury from adjournment of court the day previous until 11 o ’clock P.M. that night; that he had not discussed the case with the jury, but engaged in extensive pleasantries and conversation with them. This motion for a mistrial was overruled.

After the verdiсt, a motion for a new trial was made and oral proof taken thereon. ‍‌‌‌​​‌​​‌​​‌‌​​​‌‌​‌​‌​​‌‌‌‌‌‌​‌​‌‌​‌‌​‌​​‌​‌​‌‌‍The- sheriff was in attendance upon the jury as bailiff, took meals with them, conversed with them, listened to their jokes, and was in close association with the jury during the trial, after the motion for mistrial was overruled and up to the time the jury retired to deliberate their verdict. He did not discuss any feature of the case with the jury. Also in attendance upon the jury were deputies Smith and Wicker and bаiliff McKay. Wicker continued his activities as jury bailiff after the motion for a mistrial vas overruled, took meals with the jury, conversed with them, performed errands for the jurors, and these activities continued until the jury retired to consider its verdict. Neither the sheriff, nor the deputies, discussed the case with the jury, and none of them heard the jury discuss the case. The motion for a new trial was overruled.

In Tarkington v. State, 72 Miss. 731, the case was reversed because two deputy sheriffs, who were matеrial witnesses, remained with the jury during deliberations. That case is not in point, but the following language therefrom stresses the importance of the matter under consideration. The Court said: “This ground for reversal is not technical. It is vital, and оf universal interest. It affects not only the prisoner, but the whole body of the people, for it touches the confidence of the public in the purity and impartiality of the trial by jury. ’ ’

In the case of Cook v. State, 38 So. 113, the case was reversed on other grounds but the Court stated as follows: “This record discloses that the witness Young, who was also the father-in-law of the deceased, Crawford, was sitting with the jury around the stove, though in the courtroom where the clerk and some court officers were, аnd was in conversation with some of them, and complimented one of the jurors, and struck him familiarly on the leg. We refer to this simply to condemn it, and to deduce the great importance of keeping jurors absolutely segregаted; cmd we are not sure but that we would reverse ‍‌‌‌​​‌​​‌​​‌‌​​​‌‌​‌​‌​​‌‌‌‌‌‌​‌​‌‌​‌‌​‌​​‌​‌​‌‌‍this case and order another trial for this only, if it were the only error to loe found in the record.” (Emphasis added)

In Hamburg y. State, 203 Miss. 565, 35 So. 2d 324, the facts were similar to those in the case at bar, except that the appellant’s attorney knew that one of the State witnesses was the bailiff attending the jury throughout the trial and waited until a verdict was brought in before making objections. In that case, it was held that appellant did not comply with the rule laid down in Hilbun v. State, 167 Miss. 725, 148 So. 365.

In Hamburg v. State, supra, decided in 1948, this Court disaрproved the use of State witnesses as jury bailiffs, using this language: “In this connection we point out that it would be wiser for courts to avoid the development of such a situation as bailiff to jury testifying in the case.”

The rule announced in Hilbun v. State, supra, and applied in Hamburg v. State, supra, is not applicable here. During the trial, appellant made a motion for a mistrial on the very ground complained of in his motion for a new trial. He did all that he could do to prevent the state’s witnesses from continuing in charge of the jury.

It is clear that the sheriff and his deputies did not consciously attempt to influence the jurors in deciding the case, but that does not determine the question here involved. We аre ‍‌‌‌​​‌​​‌​​‌‌​​​‌‌​‌​‌​​‌‌‌‌‌‌​‌​‌‌​‌‌​‌​​‌​‌​‌‌‍of the opinion that a material witness should not serve as jury bailiff, and if such witness serves as jury bailiff after objection thereto by appellant, it is reversible error.

It is a common trait of human nature for witnesses to favor the side of the case on which they testify, and many witnesses become partisans for what they regard as their side of the case. Probably one reason for this is that the witness wants the jury to vindicate his version of the facts. A material witness is рartisan, or likely to be; and there are many ways a jury could be influenced without the witness actually discussing the case. Morover, there is opportunity for actual and intended improper influence which can, and should, be avoided.

Of equal or greater importance in this regard is the appearance of unfairness, and this is of vital importance; for public confidence in the fairness of jury trials is essential to the existence of our legаl system. Whatever tends to threaten public confidence in the fairness of jury trials, tends to threaten one of our sacred legal institutions. There is no reason why a material witness should serve as jury bailiff and the use of the State witnessеs as such was reversible error, where timely objection was made thereto, as was done in this case.

The assignment of error in reference to the admission of evidence is found to be without merit. The case is remanded for retrial for assault and battery.

Reversed and remanded.

McGehee, C.J., and Hall, Kyle and Arrington, JJ., concur.