D. C.]

Statement of the Case.

HEARING on an appeal by the accused from a judgment of the Supreme Court of the District of Columbia, on verdict, in a prosecution for embezzlement.

Reversed.

The COURT in the opinion stated the facts as follows:

This appeal is from a judgment upon verdict in the supreme court of the District. The indictment contained thirty-four counts charging embezzlement. The last four counts were withdrawn from the jury. The defendant, John Barton Miller, appellant here, was convicted upon the 26th and 28th of the remaining counts, and sentenced to twenty years in the penitentiary.

Under the 26th count the defendant was charged with the embezzlement of $954.43, and under the 28th count of $784.42. Each of said counts averred that the defendant was an officer, agent, and clerk of an unincorporated association known as and called the First Co-operative Building Association of Georgetown, D. C., to wit, the secretary-treasurer thereof; that there came into his possession as such secretary-treasurer said sumş of money, which he converted to his own use and thereby embezzled.

In the course of the charge of the learned trial justice to the jury, he said: "The offense of embezzlement, as has been said, is one of statutory creation; and it is one that varies so much in the implication of guilt involved that the legislature has left very wide discretion as to the punishment that can be inflicted. There are cases of embezzlement that are merely technical, and there are others that are very grave; so that I advise you not to feel embarrassed at all by any consideration of the consequences, but to leave that matter entirely where it belongs under the law. You have only to find whether the facts charged are made out; and sometimes when a case comes to sentence, the court is able to receive light upon the question of motive and circumstances and matters affecting the question of sentence, which could not be introduced before a jury upon the question of guilt at all. So it is a great mistake for the jury to labor

under any embarrassment by reason of what they may imagine a sentence may be. I refer to this only because the matter of the penitentiary has been so frequently referred to in the arguments. The statute does not require a defendant convicted of embezzlement to be sent to the penitentiary at all. He may be sent there, or he may be fined, or he may be fined and sent there; showing, as I said a moment ago, the great scope of the punishment, depending on the circumstances as they may be shown to the court, in addition to what has appeared before the jury.” To this the defendant excepted, and it is here assigned as error.

Mr. Henry E. Davis and Mr. John E. Laskey for the appellant.

Mr. Clarence R. Wilson, United States District Attorney, and Mr. James M. Proctor, Assistant, for the appellee.

Mr. Justice ROBв delivered the opinion of the Court:

Before proceeding to analyze this statement, it will not be amiss to review briefly cases which may throw light upon the subject.

The first American case which we have been able to find bearing similarity to the present case is that of Crawford v. State, 2 Yerg. 60, 24 Am. Dec. 467. In that case a juror having doubts as to the guilt of the defendant assented to a verdict of guilty, under an impression suggested by his fellow jurors that the governor would pardon defendant if the jury, by their verdict, recommended it. The supreme court of the State ruled that this was sufficient cause to set aside the verdict. The court in its opinion stated that the verdict was "at the most the verdict of eleven, according to legal principles, which requires jurors to be governed by the evidence in finding their verdict, and not extraneous circumstances.”

The next case is that of Com. v. Switzer, 134 Pa. 383, 19 Atl. 681. That was an indictment for obstructing a street, and the court, comment having been made during the argument of the

case as to the result of conviction, said to the jury: "You must decide, Gentlemen, under all the evidence in this case. You have nothing to do with the law, or with the severity or unseverity of the sentence. Some comment has been made on both sides about what the result may be." The court then proceeded to suggest the probable extent of the punishment in case a verdict of guilty was rendered, following that suggestion, however, with explicit directions that the jury had nothing to do with the result, but should decide the case according to the evidence. The appellate court found that the suggestion as to the probable extent of the punishment was error, and was not cured by the directions that followed. The court, in commenting upon this suggestion of the trial court, said: "It was no doubt inadvertently done, as both sides apparently had commented on the matter, and the judge almost immediately rectified the mistake by explicit directions that the jury had nothing to do with the result, but should decide according to the evidence. But But a jury might be apt to understand it as in some degree a subject for their consideration, and in that aspect it was a dangerous error, which can hardly be considered cured by the subsequent directions."

In McBean v. State, 83 Wis. 206, 53 N. W. 497, the jury addressed this communication to the trial judge: "If we bring in a verdict of guilty, can we depend on the clemency of the court?" to which the court responded in the affirmative. This was held reversible error. The appellate court said: "The question put by the jury to the trial judge in the case at bar was, in and of itself, harmless. The error consists of the promise made by the trial judge to the jury, to the effect that, if they found McBean guilty, they might rely upon him to extend the clemency of the court to the prisoner. It sufficiently appears from the verdict returned that the jury did rely upon such promise. The promise thus secured was well calculated to overcome reasonable doubts, and coerce an agreement for conviction. * * * It follows that any promise, pledge, or declaration of the trial judge, calculated to draw the attention of the jury from the evidence, and to induce them to base their ver

dict upon ulterior considerations, is necessarily misleading, and hence erroneous."

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State v. Kiefer, 16 S. D. 180, 91 N. W. 1117, 12 Am. Crim. Rep. 619, 1 A. & E. Ann. Cas. 268, was a case where the jury, during their deliberations, sent the judge the following communication: "Can the jury recommend the defendant to the mercy of the court?" To this the judge replied: “Yes; and I have made it an invariable rule * * to follow such recommendations." This was held prejudicial error, the appellate court saying: "This proceeding on the part of the court was clearly error. The answer to the question, while not strictly in the nature of an instruction or charge by the court, was nevertheless information conveyed to the jury, while deliberating upon their verdict, calculated to influence them. The jurors might very naturally conclude from the langauge used that they could rely upon him to extend clemency to the accused in case he should be convicted, and it might have the effect to induce the jurors to disregard any reasonable doubts they might have as to the guilt of the accused."

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In Raymond v. United States, 25 App. D. C. 555, this court held it to be error for the trial court, upon the arraignment for sentence of a convicted person, and over his objection, in effect reopen the case to receive evidence upon issues in the very case in which the accused had been found guilty.

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In State v. Dodson, 16 S. C. 453, and in Williams v. People, 196 Ill. 173, 63 N. E. 681, both criminal cases, it was held that the mere declaration of the trial judge to the jury that they had nothing whatever to do with the consequences of their verdict, but were simply to determine the question of the guilt or innocence of the defendant, was not error, such language, it was held, being a mere invocation to the jury to do their duty regardless of the consequences.

The judgment was reversed in Hackett v. People, 8 Colo. 390, 8 Pac. 574, 5 Am. Crim. Rep. 320, because the court answered affirmatively an inquiry by the jury whether their ver dict might be accompanied by a recommendation of clemency, when the law of Colorado prescribed a single punishment for

the crime of murder, thus depriving the court of power to comply with such recommendation,-to the misleading of the jury.

In Lovett v. State, 30 Fla. 142, 17 L.R.A. 705, 11 So. 550, there was a statute providing that in homicide cases a recommendation to mercy by a majority of the jury should have the effect of reducing the punishment from death to imprisonment for life. The court held that, in view of this provision of the statute, it was not error for the trial court to instruct the jury as to the effect of such a recommendation.

Gandolfo v. State, 11 Ohio St. 114, involved the question whether it was error for the trial court to send to the jury, at their request, the statutes of the State, with a reference to certain sections relating to the offense of which the defendant was charged. It was held that no error was thereby committed, as the court could not say that what was done operated, or might have operated, to the prejudice of the defendant.

The rule deducible from the foregoing cases may be thus stated: While it is permissible for the trial court to caution the jury not to be influenced by the probable consequences of their verdict, as all responsibility after verdict is with the court, it is error for the court to put before the jury any considerations outside the evidence that may influence them, and lead to a verdict not otherwise possible of attainment. The deliberations of the jury should revolve around the evidence before them, and should be uninfluenced by other considerations or suggestions. The moment other suggestions or considerations find lodgment in their minds, that moment they stray from the path which the law has marked out, and their verdict, in consequence, does not rest solely upon the evidence. It is a colored and false verdict. When we consider that the existence of a reasonable doubt entitles a defendant to an acquittal, and that a very slight circumstance may affect the verdict, the danger from putting before the jury anything that may improperly influence their deliberations becomes more apparent.

It is an unpleasant duty for the citizen to be compelled to sit in judgment upon his fellow citizen, and it is a still more unpleasant duty to be compelled to vote for his conviction. It is