The defendant appeals her conviction of cruelty to children. The factual situation developed by the evidence at the defendant’s lengthy trial does not control the resolution of this case on appeal. Suffice it to say that, under the evidence, the jury was authorized to acquit or convict.
1. The trial judge concluded his charge to the jury at *343 lunchtime. Prior to the jury’s being taken to lunch, they were instructed not to discuss the case among themselves or permit anyone to discuss the case with them. The jury commenced deliberations upon its return from the noon meal and did so through the afternoon until time for the evening meal. Prior to the jury’s being taken to dinner, the judge again gave cautionary instructions. Upon their return, the jurors continued deliberations, but were unable to reach a verdict. Thereupon the judge instructed the sheriff to arrange accommodations for the evening at a local motel. At this time, the jury was instructed not to discuss the case or deliberate on it until the next day at 9:00 o’clock. The jury was taken to a local motel. The housing accommodations provided for two jurors to share a room. Some of the rooms were connected by an adjoining door. All rooms had bath facilities, television sets and telephones.
Evidence developed at a post-trial hearing showed that each juror had a telephone conversation with a person not a member of the jury; a number of the jurors watched the late evening news on one of the Atlanta television stations on which the trial was reported; a number of the jurors purchased newspapers and read a first-page article on the trial; one juror had a bottle of bourbon whiskey brought to him; and several of the jurors discussed the case among themselves. At the post-trial hearing each juror testified that nothing that was seen, read or heard during the particular evening had any effect on the outcome of the case. The trial judge overruled the defendant’s motion for new trial on this ground.
We believe he erred in doing so. We have done extensive legal research on this issue and agree that the current attitude toward jury separation and conduct is much more lax than in former times. We have found cases where a juror’s making a telephone call, or reading a newspaper, or watching television, or listening to the radio, was held to be error. We have also found cases where no reversible error was found in each of the foregoing situations, but in those latter cases invariably only one juror was involved in only one type of outside contact, i.e., making a telephone call, etc. In this case, the entire jury was involved in at least one form of outside *344 contact, most jurors in several instances, and some in all those we have mentioned. (See appendix this opinion for illustrative purposes.) Newspaper accounts of the trial should not be read by the jury during the progress of the trial. Likewise, radio and television news accounts of the trial should be avoided. Members of the jury should communicate with other persons only after obtaining specific permission to do so from the court, and then only in the manner prescribed by the court. In this case, certain jurors disregarded the specific instruction of the court not to discuss the case among themselves.
The rules are intended to keep the jury as free from even the appearance of having their verdict being influenced by anything other than the evidence regularly presented in the courtroom and evaluated by the entire jury during the deliberative stage. This is particularly true in a criminal case, where the freedom and liberty of the accused are so heavily involved.
2. The jury deliberated at length prior to reaching its verdict. Upon their return to the courtroom, the following verdict was tendered to the trial judge: "We the jury find the defendant guilty without intent and recommend mercy.” The trial judge found that verdict unacceptable and instructed the jury to return a verdict of "guilty” or "not guilty.” The jury went back to the jury room and subsequently returned with a verdict of "guilty.” The judge then asked the jury foreman if he had anything to say to the court. The foreman affirmatively replied, stating, "We have found the defendant guilty without intent and recommend mercy.”
"A crime is a violation of a statute of this State in which there shall be a union of
1
joint operation of act, or omission to act, and intention, or criminal negligence.” Code Ann. § 26-601 (Ga. L. 1968, pp. 1249, 1269). The indictment pursuant to which the defendant was tried alleged that the defendant did "maliciously cause said child cruel and excessive physical and mental pain.” "Maliciously” includes "intent,” whereas "heedless
*345
disregard” includes criminal negligence. There is no mention of criminal negligence in the indictment, or charge against the defendant that the evidence of the child’s abuse was the result of "wanton or heedless disregard” for the child. The original verdict of the jury amounted to an acquittal. There could be no finding of guilt without intent in this case. Compare
Couch v. State,
3. The remaining enumerations of error are not passed upon.
4. The conviction of the defendant is reversed with direction that a judgment of "not guilty” be entered of record in the Superior Court of Rockdale County.
Judgment reversed with direction.
Appendix.
Daniel v. State,
Notes
"Or” under the Penal Code of 1895. See
Southern Exp. Co. v. State,