[80 Ariz. 209] Arthur M. Johnson, Phoenix, for appellant.
Robert Morrison, Atty. Gen., for appellee.
Defendant Willie Mae Burnetts was charged with the crime of manslaughter, a felony. She plead not guilty and was thereafter placed on trial and convicted by a jury of the offense charged. After denying a motion for new trial the court sentenced the defendant to serve a term of not less than two nor more than four years in the State Penitentiary.
The sole question presented on this appeal is whether the lower court erred in denying the motion for new trial. Defendant relies upon the following 'incident'-which occurred approximately one [80 Ariz. 210] hour after jury had retired to deliberate upon their verdict-as being so prejudicial as to require a reversal. We set forth the trial judge's version of the incident, viz.:
'At approximately 6:15 on the date the matter went to the jury, the bailiff, Mrs. Gibbons, in response to a call from the jury room came to my chambers and stated that the jurors desired to see Exhibit A. Shortly prior thereto this office had been informed by counsel for the defendant that they were leaving the telephone (sic) for dinner.
'I took it upon myself to go to the door of the jury room and stated to the jury that Exhibit A, the transcript of the preliminary hearing, had been withdrawn.
'A male member of the jury, whose identity I cannot recall, who was at the far end of the jury room next to the window, stated, 'We have a question: If we find the defendant guilty, can we write on the verdict that we recommend leniency?' Whereupon I stated that it could not be written on the verdict, but that an oral announcement could be made when the verdict was found, in Court.
'This statement was made in the presence of the entire jury since all of the jurors were between me and the juror who had asked the question.
'This happened at approximately 6:15. This jury did not reach a verdict until approximately 10:15 that same evening. I believe that is substantially the facts that you have with slight modifications.'
It is further conceded that no court reporter nor counsel for either the state or defendant were there present or knew anything about the occurrence until later. It seems that the defendant was then sitting across the hall some ten feet away from the door of the jury room but there is no showing she was aware of what was taking place.
It further appears from the minutes that at the time the verdict was received and recorded, the foreman of the jury '* * * states that it is the unanimous recommendation of the jury that leniency be shown the defendant'. Counsel for defendant then requested that the jury be polled, which was done.
In response to defendant's (appellant's) opening brief the Attorney General, in person, with commendable frankness has confessed error, stating:
'After reviewing all the authorities the State can come to only one conclusion: that it is reversible error for the trial judge in a criminal case to communicate with members of the jury after it has retired to deliberate, unless such communication is done in [80 Ariz. 211] open court in the presence of defendant and counsel.'
This statement may be a little broad but is, generally, in line with the prevailing rule on the subject. There can be no question but that in the discharge of his official duty, the place for the judge is on the bench. As to him, the law has closed the portals of the jury room, and he may not enter. Rule 281, ...