86 So. 179
Ala. Ct. App.
1920
MERRITT, J.

The defendant was indicted and convicted for making, or having in his possession, a still to be used for manufacturing prohibited liquоrs.

[1] The defendant’s objection to the question propounded to the sheriff, who was a witness for the state, “Where were the Darrels relative to the house?” was properly overruled. Witness had testified he found “a' still 250 or 300 yards from defеndant’s house,” but had ‍​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌​​​​‌‌​‌‌​​‌‌‌‌‌‌‌​‌‌​‌‌​‌​‌‍“first found some empty Darrels nearer his house, and went on a little further, and found four barrels of beer whеre they had fresh-made whisky,” and in the light of this testimony it was clearly competent to locate the barrels relative to defendant’s house.

[2] It was clearly competent for the witness to testify that the defendant, on the occasion of his going there and finding the still, told him that it was on his (defendant’s! land.

[3, 4] On cross-examination of the sheriff, who was being examined аs a witness for the state, defendant’s counsel undertook to prove that the sheriff got $50 for the conviction of а defendant in this class of cases. The court refused to permit defendant to show this, to which action defendant duly rеserved exception. It is always permissible to show’ the pecuniary interest of a witness in the result of a trial as аffecting his credibility. Code 1907, § 7895. Where the interest is fixed by ‍​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌​​​​‌‌​‌‌​​‌‌‌‌‌‌‌​‌‌​‌‌​‌​‌‍law, it is not necessary to make the proof, and therefore in suсh cases the refusal to permit proof would not be error. But under section 10 of the act of the Legislature of 1919, p. 11, the reward does not necessarily go to the sheriff, but may go to another according to the evidencе. In this case, therefore, it is not fixed by law that the sheriff shall receive $50 for the conviction, and therefore the сourt committed error in refusing to permit the defendant to make the proof.

[5] The remark of the solictor to the jury in his closing argument that, “If we cannot convict men caught as red-handed as I think this man was, we had better take out,” was nоt subject to objection. This was not the statement of a fact, but an argument of the solicitor’s conclusion from the testimony. King v. State, post, p. 536, 87 South. 701.

[6] The jury retired to consider their verdict at 1:30 p. m., and at 5 p. m. the same day returned a verdiсt, finding the defendant guilty as charged in the indictment. Before the jury was discharged, the defendant filed in court a motion to sеt aside the verdict and grant the defendant a new trial, among other grounds it being assigned that the officer in charge of the jury remained in the jury room while the jury was deliberating on the ease. In support of this motion the following uncontradicted facts were shown: That during the time that the jury was considering the verdict, John S. Daniel, who was the father of the sheriff, the sheriff being the only witness ‍​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌​​​​‌‌​‌‌​​‌‌‌‌‌‌‌​‌‌​‌‌​‌​‌‍for the state, remained in the jury room 30 minutes or an hour; that he did not enter into a discussion of the case with the jury, but was just mixing around with them-; that he heard the discussion of the case by the jury; that the jury during its deliberations discussed the fact оf the bailiff being in the room, and it was suggested that some one ask him to go out, but out of deference to his age this was nоt done. He did not say anything about the guilt or innocence of the defendant; he had come out of the jury room before the jury reached its verdict. He was the bailiff having the jury in charge. A member of the jury, on being examined, said:

“I do not think tilе bailiff endeavored to influence the jury in any way in reaching the verdict. I did not hear him say anything about it.”

The jury was pollеd by the defendant, and each, affirmed the verdict as being theirs. ‍​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌​​​​‌‌​‌‌​​‌‌‌‌‌‌‌​‌‌​‌‌​‌​‌‍The motion to set aside the verdict and grant the defendant a new trial was overruled.

In Johnson v. Witt, 138 Mass. 79, it was said that—

“The law will not inquire what was the effect of such intermeddling [with the jury], if it was of such a nature as to have any tendency to affect the verdict injuriously- to the party against whom it is found.”

This court, speaking through Bricken, ‍​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌​​​​‌‌​‌‌​​‌‌‌‌‌‌‌​‌‌​‌‌​‌​‌‍J., in thе case of Driver v. Pate, 16 Ala. App. 418, 78 South. 412, said:

“The question is not whether this misconduct on his [sheriff’s] part did affect the verdict, for it has been hеld many times that it need not be shown, necessarily, that the misconduct relied on as a ground for a new trial actually сontrolled or determined the verdict, if it is made apparent that the verdict might have been affected by it.” K. C., M. & B. R. R. Co. v. Philips, 98 Ala. 159, 13 South. 65.

The сonduct of the bailiff complained of may have been honest, indeed no doubt was absolutely free from any intеntional wrongdoing, but can it be said from the unquestion *508 ed facts in this case that the verdict might not have been affectеd by this conduct? Whenever we lift the veil of secrecy from the deliberations of the jury, then the right of trial by jury is threatened, аnd the bulwark of American freedom imperiled. The bailiff was the father of the sheriff, who was the sole witness for the state, and on whose testimony the state must, of necessity, have relied for a conviction. The jury recognized the imprоpriety of such conduct, wanting that freedom of deliberation and secrecy of counsel that they as jurors hаd always enjoyed, and no doubt had been taught to reverence and respect.

The presence of a single other person in the room is ah intrusion upon the privacy and confidence of jurors, and tends to defeаt the purpose for which they are sent out. If one may be present, why not several? In their private deliberatiоns the jury are likely to have occasion to comment with freedom upon the conduct and motives of parties and witnesses, and to express views that they could not express publicly without making bitter enemies. So it is our opiniоn that it is better to grant the defendant a new trial and set aside this verdict, even though tne testimony may indicate to us his guilt, rather than that we put the seal of approval upon verdicts which have been arrived at under such circumstanсes as this one is shown to have been reached. The trial court should have granted a new trial, and for the error in refusing it, the judgment is reversed, and (he cause remanded for a new trial, which is hereby granted.

Reversed and remanded.