delivered the opinion of the Court.
Thе question here for review is the/ judgment of the Third Circuit Court of Appeals, of February 14, 1927. *584 A petition for certiorari was filed in this Court February 28, 1927, and is this day granted. For reasons to be explained, we proceed at once to consider the case on its merits.
Shields, the petitioner, was indicted and tried with eight or nine others for conspiracy to violate the Prohibition Act, and also for direct violations of the Act. He was convicted of conspiracy and acquitted of the other charges. The case had been submitted to the jury, February 12, 1926. Before the court convened the next morning, the jury still being out, counsel for the defendants and the Assistant United States Attorney in charge of the prosecution visited the trial judge in chambers and requested that the jury be held in. deliberation until they should agree upon a verdict. Shortly after the opening of the court, the jury returned for additional instructions on the subject of entrapment, and having received the same,' r'etired for further deliberation.. At 2.30 o’clock that after; noon, the jury again returned to court, in the absence of petitioner and his counsel, and reported that they could not agree. What instructions, if any, were-then given the jury the record does nоt disclose. It appears that the jury again retired to deliberate, and between" 4.30 and 5.00 o’clock in the afternoon sent from their jury room to the judge in chambers the-fоllowing written communication .-
“We, the jury, find the defendants-John G. Emmer-ling, Charles Lynch not'guilty, on all counts, E. W. Hardi-son, J. E. Hunter and J. L. Simlér guilty on all counts. Daniel J. Shields, Harry Widman, J. M. Gastman unable to agree. Signed, E. B. Milligаn,
Foreman.”
The judge from his chambers sent back the following written reply:
“ The jury will have to find also whether Shields, Wid-man and Gastman are guilty or not guilty.
F. P. SchOONMAKER,
Judge.’.’
*585 These communications were not made in open court, and neither the petitioner Shields nor his counsel was present, nor were they advised of them. Shortly after, the jury returned in court and announced the following verdiсt:
“ We, the jury, find' that the defendants John G. Em-merling, Charles Lynch, not guilty on all counts. E. W. Hardison, J. L. Simler, J. E. Hunter guilty on all four counts. Daniel J. Shields, Harry Widman, J. M. Gastman guilty on first count and recommended to mercy оf court. Not guilty on 2nd, 3rd and 4th counts, this 13th day of February, 1926.
E. B. Milligan,
Foreman.”
Upon this verdict the court rendered its judgment sentencing Shields to pay a fine of $2,000 and to be imprisoned in jail for one year. Shields then filed in court a petition alleging that not until April 21, 1926, more than two months later, did he or his counsel have any knowledge of the tentative verdict sent by the jury to the judge in chambers, or of the reply thereto by the judge, and praying that he be allowed an exception to the action of the judge in sending the reply. The court refused to grant the petition, for the reason as stated by it,
“ that counsel for the defendant, Daniel J. Shields, requested the court to hold the jury in deliberation until they should agree upon a verdict, and thеrefore when the court received the communication from the jury, it was .returned with the instructions complained of, although it is true that the defendant’s counsel was not prеsent when the communication was handed to the court from the jury.
(Sgd) Per Curiam,
S”
*586 An exception was allowed, however, to the foregoing' refusal to grant an exception, the record reciting in this respect:
“ Eo die an exception to the above refusal to grant an exception is hereby noted to the defendant, Daniel J. Shields.
F. P. SCHOONMAKER,
Judge.”
Shields took the сase to the Circuit Court of Appeals, assigning, among other errors the action of the District Court in sending the communication to the jury and the refusal of the court to grant an exception to that action. The Circuit Court of Appeals, in affirming the judgment, said:
“ The justified reliance of Court on the request of counsel; avoidance of abortive mistrials and the timely administration of a court’s work, based on the verdict of a jury, which had evidence to support it, all unite in making the case one where with one breath a court can not be asked by counsel to take, a step in a case and later be convicted of error, because it has complied with such request, fоr as is said in 17 Corpus Juris 373-4, ‘A defendant in a criminal case can not complain of error which he himself has invited.’ ’•’
The petitioner urges, first, that the request joined in by counsel for the dеfendants, that the jury be held in deliberation until they had reached a verdict, could not be properly construed as a consent that the court might communicate with the jury оut of court and in the absence of the defendants and their counsel; second, that the action of the District Court in.thus communicating, with the jury was a denial to petitioner оf due process of law; third, that the judgment of the Circuit Court of Appeals upholding that action is in conflict with the decision of this Court in
Fillippon
v.
Albion Vein Slate Co.,
The Solicitor General advises us that, after a careful study of the record in this casе, the Government.is unable to find any satisfactory ground for. opposing the petition for a writ of certiorari, and that no brief in opposition will therefore be filed, and if thе writ issues, the Government will submit.the case without being heard further.
In view of this, we deem it proper to dispose of the case at once. On the statement of the case as we have given it, we think the. judgment of the Circuit Court of Appeals must be reversed on the first and third grounds urged, and the, cause remanded to the District Court for a new trial. The joint request to the court, of counsel for the defendant and the Assistant. District Attorney, to hold the jury in deliberation until they should agree upon a verdict, made in chambers without the presenсe of the defendant, cannot be extended beyond its exact terms. It did not include any agreement that the court should receive a communication from the jury and аnswer it without giving the defendant and his counsel an opportunity to be present in court to take such action as they might be advised, especially when the communication as *588 to the result of. the deliberations of the jury showed a marked difference in the views which the jury had as to the guilt of the various defendants. Counsel, in making it, necessarily assumed, as they had a right to, that any communication from the jury would be made in open court, and that they must necessarily be offered an opportunity to withdraw the request already preferred, or to vary it. It is hardly fair to say that a general request to hold the jury for a verdict can be properly applied to such a situation as subsequently developed by the communication of the jury showing their views as to the various defendants.
In the case of
Fillippon
v.
Albion Vein Slate Co.,
“ Where a jury has retired to consider of its verdict, and supplementary instructions are required, either beсause asked for by the jury or for other reasons, they ought to be given either in the presence of counsel or after notice and an opportunity to be prеsent; and written 'instructions ought not to be sent to the jury without notice to counsel and an opportunity to object.”
If this be true in a civil case, a fortiori is it true in a. criminal case. The request made to the cоurt jointly by the counsel for the defendant and for the Government did not justify exception to the rule of orderly conduct *589 of jury trial'entitling the defendant, especially in a criminal case, to be present from the time the jury is impaneled until its discharge after rendering the verdict. We reverse the judgment without reference to the other causes of error assigned.
Reversed.