Jenkins v. State , 35 Fla. 737 ( 1895 )

Mabry, C. J.:

In December, 1891, Francis Joseph Packwood, with-his sister-in-law, Miss Adelaide Bruce, and his four-year-old son, lived on the Hillsboro river in Volusia county, Florida, about half way between the towns of' New Smyrna and Oak Hill. Mr. Packwood’s place was somewhat isolated, being immediately on the river and about one mile east of the public road between the towns mentioned, with a road extending from the public road to the place on the river. On Thursday preceding the 12th day of December, 1891, Mr. Pack-wood left his place to visit Orange county, and, as was-his custom on remaining from home over nights, he-induced a Mrs. Hatch, living a few miles distant, to-stay with his family until his return. During his absence in Orange county, and on the 12th day of December, 1891, the dead bodies of Miss Bruce, the little boy, Mrs. Hatch and her little son, who had accompanied her to the Packwood place, were found in the-house, under circumstances about which there is no-dispute, indicating that they had been brutally murdered. The plaintiffs in error were convicted of murder in the first degree — one of them (Marion Clinton)being recommended to the mercy of the court — under an indictment found at the fall term, A. D. 1893, of the Yolusia Circuit Court, charging them with the-murder of Adelaide Bruce.

The indictment contains six counts; the first one-alleging that Irving Jenkins effected the death of Adelaide Bruce by means of a leaden bullet discharged by him from a certain pistol, and that the other defendants were present, aiding and abetting the com mission or the murder. The second count alleges that William A. McRae effected the death of Adelaide Bruce by means of a leaden bullet discharged by him from a certain pistol, and that the other two were present aiding and abetting the commission of the murder. The third count alleges that Marion Clinton effected the death of the person named by means of a leaden bullet discharged by him from a certain pistol, and' that Jenkins and McRae were present aiding and abetting the murder; and the fourth count charges that Irving Jenkins effected the death of Adelaide Bruce by striking and beating her with a certain double-barrel gun, and that McRae and Clinton were present aiding and abetting the commission of the murder. The other counts charge the commission of the offense the same way, except in the one McRae, and Clinton in the other, are charged as committing the offense, and that the others were present aiding and abetting* the commission thereof.

On application made, by the accused, the case was transferred to Lake county, and upon a trial in that county the accused were convicted upon the fourth count in the indictment. Motions in arrest of judgment and for new trial were made and overruled, and the accused sentenced — Jenkins and McRae to be hung, and Clinton to confinement in the penitentiary for life.

An assault was made on the indictment by plea in abatement on the ground that it was found by a grand jury not drawn according to law, in that said jurors were not drawn from any box as required by Chapter 4122. laws of 1893, nor were thirty persons summoned as jurors for said term from whom eighteen were selected to serve as grand jurors by the court as required by section five of said act, but the same were summoned by the sheriff of Volusia county from the body of the county at large. A demurrer was sustained to this jilea and defendants excepted, and the ruling is assigned as error here. Great strictness is required in pleas in abatement setting up simply irregularities in the selection of jurors. We said in Reeves vs. State, 29 Fla. 527, 10 South. Rep. 901, that in framing such pleas, the authorities held that no uncertainty or ambiguity should exist, and in fact the greatest accuracy and precision are required and they must be certain to every intent. Woodward vs. State, 33 Fla. 508, 15 South. Rep. 252. The act of 1893, Chapter 4122, repealed the act of 1891, Chapter 4015, appendix to the Revised Statutes, and was a substitute therefor. The plea before us alleges that the indictment was found by a grand jury not drawn according to the act of 1893, but was summoned from the body of the county at large. If for any sufficient cause a grand jury can be legally drawn from the body of the county at large, it is evident that the plea is defective, because it does not allege that such cause did not exist. Section 1157 Rev. Stats., which is a revision of the law of 1875, provides that ‘ ‘whenever, for any cause, no petit j urors or less than the whole number have been drawn or summoned in the manner provided by law for any regular or special term of the circuit or county courts of this State, it shall be lawful for said courts to issue a special venire for a sufficient of such jurors for said term, to be directed to the sheriff eammanding him to draw from the box provided for in section 3, Chapter 4015, laws of Florida of 1891, or to summon from by standers, or the body of the county at large, the number of qualified jurors so ordered.” The same rule applies to the selection of grand jurors—sec. 2803 Rev. Stats. The act of 1893, Chapter 4122, has repealed and taken the place of the act of 1891, Chapter 4015, but the former act has not repealed section 1157 of the Revised Statutes. The repealing clause of the act of 1893 is confined to the statute, of 1891, and there is no -conflict between the former and section 1157 of the Revised Statutes. In fact there would be a deficiency-in the statutory regulation of selecting jurors if the court did not have the power to provide a jury in case there was a failure for good cause to draw one under the act of 1893. In our judgment the plea wms defective, and the court did not err in sustaining a demurrer to it.

The objections urged in the trial court, and the assignments of error made here, based upon the alleged disqualification of certain petit jurors, are not argued, and we will devote no space to them.

Counsel representing the State announced during the taking of testimony that it had become of importance to the State that what the accused testified in the grand jury room should be placed before the jury, and it was explained that the State attorney himself took down the testimony of the witnesses before the grand jury. The State attorney being sworn, was asked to look at a paper and state in whose hand writing it was, and said in reply that the portions to the ninth line on the third page, and beginning from the bottom of the sixth page on, was in Ms hand writing, and that it purported to be the testimony of W. A. McRae before the grand jury at the Spring term, 1893. He further testified that he was present, examined McRae and took down the testimony mentioned as being in his hand writing, and that a member of the grand jury took down a portion of it, but the witness’ recollection was that he con-tinned the examination, and superintended the taking" of it down, and looked over the shoulders of the juror while it was being taken down. He also stated that it was barely possible that he may have gone from the room a few moments, but did not remember leaving the room. The State attorney was not present when the grand j ary elected a clerk, but he stated that the grand jury had a clerk. At the time McRae was examined before the grand jury, he was under subpoena as a witness to attend that body, and at that time he-was not charged with the commission of the offense in reference to which he was examined, and for which he was subsequently indicted, nor was he at that time in custody of any officer. The State attorney notified him when he appeared in the grand jury room that he was under suspicion, “that he need not testify unless he saw fit, that he need not testify to anything that would criminate himself; that he could not be compelled to do so; that he was at liberty to testify or not.” After this he was willing to testify as to anything he knew about the case, and did testify. Before the introduction of the paper in evidence the State attorney was asked, on cross-examination, if he took down McRae’s testimony in writing, and stated the writing was-what he took down, and that he had designated the part he did not take down. He had already stated that he superintended the taking of the part taken down by the grand jury, and looked over his shoulders when it was done. The State attorney further testified that he did not remember that the testimony referred to was read over to McRae after it was taken down— thought that it was not; portions of it may have been read to him as it was taken down. The testimony was not signed by McRae or any one else. Counsel for the State asked the court to authorize the removal of -secrecy from the testimony of William A. McRae before the grand jury, preliminary to the introduction before the trial jury of his testimony before the grand jury at the Spring term, 1893, of the Circuit Court for Yolusia county. Objection was made on the part of the accused on the following grounds, viz: that defendant McRae had not testified in the case, nor was there :any complaint against him for perjury; the law requires that the grand jury shall have a clerk who shall preserve the minutes of the- proceedings before it, which minutes shall be delivered to the State attorney when it shall direct, and there was no evidence before the court that the grand jury directed the minutes to be given to the State attorney; that the evidence showed that the proposed testimony was not taken by the clerk of the grand jury. The objections were overruled and defendants excepted.

The State attorney further testifying, was asked if that (referring to the paper) was the testimony of McRae at the Spring term, 1893, of the Circuit Court of Yolusia county, and stated that it was. He also stated “this is substantially the testimony as taken down by me and that clerk; it is the testimony which is substantially as given by Mr. McRae taken down by me at the time, and the clerk; it is not verbatim.” The paper was admitted in evidence, and the witness read it to the jury as the statement of McRae before the grand jury at the Spring term, 1893, of the Yolusia Circuit Court, and the defendants excepted.

A statement of the testimony of Marion Clinton before the grand jury at the same term was also admitted in evidence under similar circumstances, over the objections of the defendants. Clinton was not at the time charged with the offense, or under arrest, and was cautioned by the State attorney before testifying, as was McRae. In Clinton’s case the State attorney alone-took down the testimony. Referring to the paper», the State attorney testified that it was the testimony of Marion Clinton given before the grand jnry at the Spring term, 1893; it was the substance of his testimony, and was correct. On cross-examination he was-asked if it was what may be termed his notes of the-testimony of Clinton, and replied it “might be termed that, and a little more than the notes of the testimony; I took it down as near as I could, abbreviating a little-in the matter.” The paper was introduced in evidence, and was read to the jury by the witness as the testimony of Marion Clinton before the grand jury, and: defendants excepted. It appears that there were various abbreviations, by letters and figures in the statement, and as it was read to the jury the State attorney stated what they stood for. These statements, admitted as evidence, do not contain any confessions on the part of the accused, but they purport to contain their statements before the grand jury in reference to their connection with the case, and in respect to which they were contradicted by testimony introduced for the-State.

It is insisted here on behalf of the accused that the court erred in permitting the written statements to be-introduced as evidence against the defendants, and the grounds of this insistance may be arranged under three heads: First, the introduction of the written, statements in evidence was an invasion of the secrecy of the grand jury not authorized by law; second, the statements made by the accused before the grand jury were not voluntary, and should have been excluded on this account; and, third, the statements themselves were not admissible as evidence, and at most could, only be used for the purpose of refreshing the memory of the witness in case it became necessary and proper to do so in giving his oral testimony of what was said by the accused before the grand jury. It is provided by statute in this State that “no grand juror or officer of court, unless the court shall so order, shall disclose-the fact that any indictment for a felony has been found against any person not in custody or under recognizance, otherwise than by issuing or executing process on such indictment, until such person has been arrested.” “That no grand juror shall be allowed tosíate or testify in any court in wdiat- manner he or any other member of the jury voted on any question before them, or what opinion was expressed by any juror in relation to such question.” “Members of the grand jury may be required by any court to testify, whether the testimony of a witness examined before such jury is consistent with or different from the evidence given by such witness before such court; and they may also be required to disclose the testimony given before thereby any person, upon a complaint against such person for perjury, or upon his trial for such offense.” Secs. 2812, 2813, 2814 Rev. Stats.

It is contended under the first objection that the only cases in which a grand juror can be required, or should be permitted, by the court'to disclose the testimony of witnesses before that body are those mentioned in section 2814 (the one last mentioned), and that as the accused never testified before the court, and there was no complainst against them for perjury, the statements should not have been admitted. The cases of Tindle vs. Nichols, 20 Mo. 326; Beam vs. Link, 27 Mo. 261; and Commonwealth vs. Green, 126 Penn. St. 531, 17 Atl. Rep. 878, 12 Am. St. Rep. 894, are cited in support of this contention. The fifteenth section of a Missouri statute was the same as section 2814 of our revision, but in a subsequent section of the Missouri statute it was provided that “no grand juror shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto.” In the case of Tindle vs. Nichols, supra, the court say: “In what cases can a grand juror be lawfully required to testify as a witness in relation thereto ? Such as are embraced in the fifteenth .section, and such only.” The cases mentioned in the fifteenth section were the only ones, as held by the court, in which a grand juror could lawfully be required to testify in relation thereto. This ruling was affirmed in the case of Beam vs. Link, supra. We have no such provision in our statute as that contained in the fifteenth section of the Missouri statute. The Pennsylvania case referred to holds that on a motion to quash an indictment upon the ground that the presentment was not made upon the knowledge and observation of the grand jury as required by their practice, but upon the testimony of witnesses taken before them on another complaint, a member of the grand jury was a competent witness to testify that that body, in making the presentment, acted upon such testimony, and not upon their own knowledge and observation. It is stated generally in the books, referring to the subject, that at common law members of the grand jury should not disclose what transpired before that body in the course of their investigations, but the reasons for excluding such disclosures rest upon grounds of public policy. In Commonwealth vs. Hill, 11 Cush. 137, it is said: “The extent of the limitation upon the testimony of grand jurors is best defined by the terms of their oaths of office, by which the commonwealth’s counsel, their fellows, and their own, they are to keep secret. They can not, therefore, be permitted to state how any member of the jury voted, or the opinion expressed by their fellows or themselves, upon any question before them, nor to disclose the fact that an indictment for a felony has been found against any person not in custody or under recognizance, nor to state in detail the evidence on which the indictment is founded. 1 Greenleaf on Evidence, sec. 252; Freeman vs. Arkell, 1 Car. & P. 135, 137; Huidekoper vs. Cotton, 3 Watts 56. To this extent the free, impartial, unbiased administration of justice requires that the proceedings before grand juries be kept secret. By no other means can perfect freedom of deliberation and opinion among jurors be effectually secured, and the ends of an energetic administration of criminal justice surely attained. But we are not aware that the sanction of secrecy has ever been extended beyond this; we know of no authority which carries the rule of exclusion further, and we can see no ground of policy or sound reason for its extension. This rule has been substantially recognized by the Revised Statutes of this commonwealth, c. 136, secs. 12, 13, which would seem to be a signifi cant indication of the extent to which public policy, upon which the rule mainly rests, requires it to be carried. It seems to us, therefore, that a member of a grand jury may testify to any fact, otherwise competent, which does not violate the restrictions above stated.” The sections of the statute referred to in this decision are substantially the same as sections 2812 and 2813 of our Revised Statutes. To the same effect was the decision in the case of Commonwealth vs. Mead, 12 Gray 167. The grounds of public policy for excluding the testimony of grand jurors are said in this case to be three-fold: “One is, that the utmost freedom of disclosure of alleged crimes and offenses by prosecutors may be secured. A second is, that perjury and subornation of perjury may be prevented by withholding the knowledge of facts testified to-before the grand jury, which, if known, it would be for the interest of the accused or their confederates to-attempt to disprove by procuring false testimony. The third is, to conceal the fact that an indictment is found against a party, in order to avoid the danger that he may escape and elude arrest upon it, before the presentment is made.” It is further said in this-case: “But when those purposes are accomplished, the necessity and expediency of retaining the seal of secrecy are at an end. Cessante ratione, cessat regula. ’ ’ A different rule might have the effect to exclude from, the investigation of a case essential and important evidence by adhering to a principle of exclusion based upon public policy, after the reasons on which the rule is based have ceased to exist. How a grand juror or any member of the jury voted on any question before them, or what opinion was expressed by ány juror in relation to such question is forever sealed, not only on grounds of public policy, but by positive statute (section 2813). The courts have ho discretion to go-into such matters. But independent of statutory regulation, it has long been established that it is discretionary with the trial court to permit a grand juror to be examined as to what a witness testified to before the grand jury, when competent and the ends of justice require it, and we do not see that our statutes have changed this rule. Authorities cited supra; State vs. Broughton, 7 Ired. 96, S. C. 45 Am. Dec. 507; State vs. Horad, 15 Oregon 262; United States vs. Kirkwood, 5 Utah 123; Notes to Commonwealth vs. Green, 12 Am. St. Rep. 894. The provisions of section 2814 as to the special cases mentioned do not, in our jud ment., exclude an enquiry in other cases sanctioned bylaw when, in the discretion of the court, it becomes-proper to open up such enquiry.

Section 2807 provides that the State attorney shall, when required by the grand jury, attend that body for the purpose of examining witnesses in its presence- and to give it advice upon legal matters, and whenever it would be proper for a grand juror to testify as to the statements of witnesses before the grand jury the State attorney can likewise testify as to such matters. There is no difference in principle between the-two in such matters. State v. Van Buskirk, 59 Ind. 384; Knott v. Sargent, 125 Mass. 95.

The second objection is, that the testimony of the accused before the grand jury was not voluntary. In Newton vs. State, 21 Fla. 53, it was said that ‘‘the-general rule is, that what a party says in relation to-the offense is admissible in evidence against him, whether on oath or not; provided, always, he is not at-such time charged with the commission of the crime, and such statement is voluntary.” The view expressed in Hendrickson vs. People, 10 N. Y. 13, was also quoted to the effect that ‘ ‘in all cases, as well before coroners’ inquests as on the trial of issues in court, when the witness is not under arrest, or is not before the officer on a charge of crime, he stands on the same footing as other witnesses. He may refuse to answer, and his answers are to be deemed voluntary, unless he is compelled to answer after having declined to do so. In the latter case only will they be deemed eomijulsory and excluded.” The question in the Newton case arose on the admission of an affidavit made by the accused before a coroner. According to ancient nisi prius decisions in England it seems to have been held that testimony given under oath in any judicial investigation could not be voluntarily given, but this view was overthrown by the case of Regina vs. Wheater, 2 Moody’s Crown Cases 45, in which all the judges participated. In some of the cases it is stated that the "testimony given in a judicial investigation, although under oath, may be omitted if, at the time it was given, the prisoner was not resting under any charge or suspicion of having committed the crime. Where an accused has been charged in a judicial way, or taken into custody on an accusation of crime, his examination on oath is viewed in a different light than when he is examined before arrest or charged with the offense. The accused were not at the time of testifying before the grand jury charged with the offense, or in custody, and we need not here say what would be our ruling if such had been the case. The rule stated in the Newton case, in reference to an examination before a coroner, that where a witness is not under arrest, or charged with the crime, and is instructed by the official conducting the examination that he need not answer any question that would criminate him, his testimony may be given in evidence, in a proper case, on a subsequent indictment for the offense, applies to all judicial investigations. The right to protect himself by refusing to answer questions tending to criminate himself, and which he can do under all circumstances, is deemed a sufficient shield against injury or harm under such circumstances. State vs. Vaigneur, 5 Rich. 391; Teachout vs. People, 41 N. Y. 7; Hendrickson vs. People, 10 N. Y. 13, S. C. 61 Am. Dec. 721; People vs. McMahon, 15 N. Y. 384; Farkas vs. State, 60 Miss. 847. State vs. Clifford, 86 Iowa 550, 53 N. W. Rep. 299. In the present case, as stated, the accused were not in custody, nor were they at the time resting under any charge of the crime for which they were subsequently indicted, and it is made to appear that theSiate attorney cautioned them before being examined, that they need not testify unless they were willing to do so, and that they could not be compelled to criminate themselves. The fact that they were told at the-time that they were under supicion does not have the effect to exclude their testimony before the grand jury.

The next objection is, that the statements reduced to writing in the manner shown were not competent or proper evidence against the accused, and at most could only be used as memoranda for refreshing the memory of the witness in case it became necessary for that purpose. The bill of exceptions shows that the written statements of evidence of the accused before t-he-grand jury as made by the State attorney were themselves admitted as evidence, and the original papers sent up for inspection, under the order of the circuit judge, show by endorsements that the veil of secrecy was removed and the papers themselves offered in evidence on the examination of the State attorney. From what has been said it- follows that it was competent for the State to prove, on the trial what the accused testified to before the grand jury, and that a member of that body, or the State attorney, could testify as to such matters within their knowledge. We can see no objection to the State attorney or a member of the-grand jury testifying from recollection as any other-witness as to what the accused said before the grand jury, but we have been unable to find any authority to sanction the view that the written statements of evidence made by the State attorney in the ex parte examination of witnesses by him, before the grand jury, are evidence of themselves of what the. witnesses there testified. We presume that the written statements, of evidence were admitted in this case on the ground. that they were made by an officer of the law in the performance of an official duty, and that as such they were entitled to consideration as evidence of what they contained. It is true that in investigations before examining courts, such as committing magistrates and coroners’ inquests, where the testimony of witnesses has been reduced to writing, as provided by statute, it may be introduced as evidence of what the witnesses there swore. In Jackson vs. State, 81 Wis. 127, 51 N. W. Rep. 89, it was held that on the second trial of a criminal case the testimony of a deceased witness, as taken down by the official stenographer at the former trial, may be received in evidence on behalf of the prosecution. And in California it seems the notes of the official reporters can be used as evidence of what witnesses testify to. The case of People vs. Morine, 61 Cal. 367. The case of State vs. Friedrich, 4 Wash. 204, 29 Pac. Rep. 1055, 30 Pac. Rep. 328, 31 Pac. Rep. 332, holds that a stenographer’s notes of evidence taken at a former trial can not be introduced to impeach the testimony of a witness on the second trial regarding matters alleged to have been testified to by him at sn ch former trial. In this case it is said: ‘‘Bowman (the stenographer) was present and competent to testify. He could have been asked whether Longstaff had testified as he claimed; and if unable to answer without his notes he could have been permitted to refer to them to refresh his recollection. But independent of him his notes had no standing in the court.” The California case cited was referred to and it was observed that under the statute of that State the notes of reporters when written out and certified were made prima facie correct statements of testimony. Vide Rounds vs. State, 57 Wis. 45, 14 N. W. Rep. 865. Our statutes provided that the grand jury “may appoint one of its number to be clerk to preserve minutes of the proceedings before it, which minutes shall be delivered to the State attorney when it shall direct.” “Whenever required by the grand jury, it shall be the duty of the State attorney to attend it for the purpose of examining witnesses in its presence, or for giving it advice upon any legal matter, and to . issue subpoenas and other process to secure witnesses.” Secs. 2806, 2807 Rev. Stats. It is also provided in section 2809 that the foreman of the grand jury shall return to the court a list under his hand of all witnesses who shall have been sworn before the grand jury during the term, and the same shall be filed of record by the clerk. In the present case it is not shown that the written statements introduced in evidence were minutes of the proceedings kept by the clerk of the grand jury. The State attorney himself took down the evidence, except a small portion of the testimony of one of the accused, which was taken down by a member of the grand jury, but if it had all been taken down by the clerk of the grand jury we do not see that-it would have made any difference. The accused did not sign the statements of evidence, and it does not appear that they approved them in any way, or that they were even read over to them after being reduced to writing. To authorize the introduction.of such evidence against a party, some statutory warrants must be shown, and we fail to find any statute giving such statements the effect of evidence, or even making them matters of public record. The investigations before grand juries are ex parte and secret, and, aside from the presentments, the only portions of the proceedings before such bodies required to be filed or recorded are the lists of witnesses sworn before them. The rules of the common law, as shown by the cases we have already cited, forbid grand jurors to disclose the testimony of witnesses before their-body, the reasons for yhich are obvious, and unless required by some court-, in the exercise of a discretion in the furtherance of justice, public policy required such matters to remain undisclosed. Our statutes have indicated two cases in which public policy no longer requires, in the judgment of the Legislature, that the veil of secrecy should be so closely guarded, and, as we have held, the mention of these cases does not deprive the court of the right to enquire into such other matters before the grand jury as is sanctioned by the practive of the courts, and not in violation of express statutory provisions. The authority to preserve minutes of proceedings before the grand jury, and for them to be delivered to the State attorney when it shall direct, and the duty devolving upon the State attorney to attend the grand jury, examine witnesses, and give advice, do not, in our judgment, contemplate that the grand jury shall make any official record of the testimony of witnesses examined before it. The minutes-of the proceedings kept by a grand jury are for its own use, and for the information and assistance of the prosecuting officer, but such ex parte proceedings have not been invested by statute with the force of a binding record against individuals who appear before that body as witnesses. .They may not know, or be able to know, what the State attorney or grand jury has reduced to writing, and there is no way open to them for an investigation as to what has been reduced to writing as their statements. Upon no principle of law ought witnesses to be bound by such statements, and in our judgment the court was in error in permitting such statements to be introduced as evidence %>er se of what the accused stated before the grand jury. The State attorney should have been examined as to his knowledge of what the accused stated, and an opportunity afforded to investigate what was said independent of any written statements made at the time, tiuch statements could have been used, if necessary, for refreshing the recollection, but for no other purpose. The statements admitted as evidence do not, as already stated, contain confessions of guilt, but they purport to contain statements of the accused in reference to matters connected with the murder of Adelaide Bruce that were contradicted by other evidence of the State, and we can not say what harm was done by the use of the statements as evidence. In cases involving such consequences the court can not say that improper testimony was harmless unless it affirmatively appear that no injury was done.

Mrs. Hatch was one of the four persons found dead in the Packwood house, in a room adjoining the one in which the dead body of Miss Bruce was found. The husband of Mrs. Hatch was asked, on examination as a witness for the State, whether or not his wife possessed a red flannel underskirt, and stated that she did. Being further asked if it was like the one exhibited to him, replied that he could not state; that he did not know that he ever saw the skirt, his wife said that she was making one a few days before she went away, and that he could not identify the skirt; that he could not recall ever having seen it — may have done so, but could not recollect of doing so. He further stated that a Mrs. Berry left a piece of red flannel at his house as a present while they were away, and that he told his wife to make it up for herself; that his wife made itintoskirts for herself; she told him that she had, or rather for herself and sister; one she sent to her sister, and the other she said she was going to keep. He also stated that no red flannel skirt was found among his wife’s clothing'at home after the murder. The testimony of the witness as to what his wife said to him about the flannel skirt was objected to as being hearsay evidence, and the court overruled the objection. While the witness stated positively that his wife possessed a red flannel skirt, it is evident from all that he said that he had not seen the skirt, and what he knew about its being made was derived from what his wife told him. It is proper tó state in this connection that there was testimony tending to show that a red underskirt was discovered on the dead body of Mrs. Hatch at the time of the inquest held over the dead bodies. Borne of the persons who assisted in dressing the bodies for burial were asked about the red skirt, but could not recollect of seeing one. There was testimony, however, as stated, tending to show that Mrs. Hatch had on a red skirt. There was no question about the identity of Mrs. Hatch, as she was well known to many of the witnesses who saw the dead bodies, and clearly recognized by them. The State introduced in evidence a statement made by the defendant McRae a short time after the murder was discovered, in speaking about seeing Mrs. Hatch on the Packwood place the day before the dead bodies were discovered, to the effect that he would never forget, or could never forget, the red skirt and white waist of Mrs. Hatch. In connection with this statement it is apparent without further recital that the importance of showing that Mrs. Hatch was wearing a red skirt at the time she was killed extends beyond the mere proof of the corpus delicti. That the testimony as to what Mrs. Hatch said to her husband about making the flannel into skirts is hearsay, is entirely clear, and the court should have excluded it on the objection made. We do not decide that the ruling on this exception, if it stood alone,-, would result in a reversal, of the judgment. In so far as the testimony objected to bore on the question of the corpus, delicti, it was wholly immaterial in this case, but in so far as it added weight to the testimony that Mrs. Hatch had on a red skirt, in view of the statement of McRae, above referred to, a different estimate should be placed upon it. The fact that Mrs. Berry left red flannel, at the house of Mr. Hatch can be shown in connection with the other facts, but the statements of the wife as to making the flannel into skirts, was hearsay, and the only proper way for the court to deal with such, evidence when offered is to exclude it from the case.

William Baxter testified for the State that he had conversations with defendant Clinton regarding the Packwood murder, after the murder was discovered. Witness did not remember dates of the conversations, but they were had at various places. Witness referred to a conversation at Olsen’s and at the house of witness. The last conversation witness remembered was on the 12th day of February, 1898, something over one year after the discovery of the dead bodies at the Packwood place. Witness was asked if Clinton said anything with regard to McRae in the conversation, and answered that he did not at that conversation, referring, as shown, by the connection, to the last conversation mentioned. Witness stated that Clinton ref erred to McRae in one of the conversations when he, McRae, was not present. Objection was made to what Clinton stated McRae said in the latter’s absence, and the court overruled the objection and permitted, the witness to detail such statement. Witness testified that he and Clinton were talking in regard to the murder, and Clinton said McRae told him (witness) that he (McRae) saw Miss Bruce blow the light out on the night that' they were murdered. Question: What else? Answer: “Well, that is all, with the exception that he told me and showed me in the position she stood to blow the light out.” Question, “Clinton did?” Answer: “Yes, sir; that McRae told him.” Question: “Clinton showed you the position ? ” Answer: “Yes, sir; that she stood in when she blew the light out.” Question: “Clinton-showed you the position that McRae stood ? ’ ’ Answer: “Yes, sir.” Witness stated on cross-examination that he could not remember the date when the conversation in reference to blowing out the light occurred. He could remember that it was on the road between his-place and Smyrna, as they were walking there, and thought it was in the evening, but could not remember the day, the week or the month. All the conversations the witness had with Clinton were subsequent to the discovery of the dead bodies at the Packwood place.

The rule as to the admission in evidence of the acts- and declarations of a co-conspirator in reference to the common design affecting his associates is thus stated by Mr. Greenleaf, viz: “A foundation must first be-laid by proof sufficient in the opinion of the judge to-establish prima facie the fact of conspiracy between the parties, or proper to be laid before the jury as tending to establish such fact. The connection of the individuals in the unlawful enterprise being thus-shown, every act and declaration of each member of the confederacy, in pursuance of the original concerted plan, and with reference to the common object, is, in. contemplation of law, the act and declaration of them all, and is, therefore, original evidence against each of them. It makes no difference at what time any one entered into the conspiracy: Everyone who does enter into a common purpose or design is generally deemed,. inlaw, a party to every act which had before been done by the others and a party to every act which may afterwards be done by any of the others in furtherance of such common design. * * * If they took place .at a subsequent period, and are, therefore, merely narrative of past occurrences, they are, as we have seen, to be rejected.” 1 Greenleaf on Evidence (15th ed.), sec. 111; Williams vs. Dickenson, 28 Fla. 90, 9 South. Rep. 847; Hall vs. State, 31 Fla. 176, 12 South. Rep. 449. The rule is, that while proof of an overt act or declarations by one in pursuance of a common purpose or design to commit a crime may be given in evidence against all of the conspirators, the acts and declarations to be admitted must be such only as were done and uttered during the pendency of the criminal enterprise and in furtherance of its objects. If they occur at a subsequent period and are merely narrative of past occurrences, they are not admissible against any but the party making or uttering them. The principle upon which said evidence is admitted is that it must show the acts or declarations to be a part of the res gestos, and when the criminal enterprise is at an end, whether by accomplishment or abandonment, no one of the confederates can be permitted by any subsequent act or declaration of his to affect the others. State vs. Larkin, 49 N. H. 36, S. C. 6 Am. Rep. 456; State vs. Duncan, 64 Mo. 262; People vs. McQuade, 110 N. Y. 284, 18 N. E. Rep. 156, 1 L. R. A. 273; Phillips vs. State, 6 Texas App. 364; Card vs. State, 109 Ind. 415, 9 N. E. Rep. 591.

In our judgment the court erred in permitting the witness Baxter to testify as to what Clinton said McRae told him in reference to seeing Miss Bruce blow out the light. McRae was not present, and, as it appears from the record, the statement was made after the murder at the Packwood place occurred. The conversation with McRae, as given by the witness, was a mere narrative of a past transaction, and shown to be-subsequent to the commission of the crime.

There is another exception to the admission of evidence which, in our judgment, should have been sustained by the court. It appears that for two or three-months in 1892 the defendant Jenkins was confined in the jail of Duval county, in the custody of the sheriff of that county, on a charge of selling liquors in violation of the United States statutes. Prior to that time-Jenkins had been arrested under a charge for the murder of which he now stands convicted, but had been discharged, before his incarceration in' the Duval county jail on the complaint of violating the laws of the United States. The sheriff of Duval county had received information that Jenkins probably knew material facts in reference to the Packwood tragedy, and had conversed with him in jail several times on that subject. The State put in evidence the statements of Jenkins to the sheriff of Duval county in reference to* the murders at the Packwood place, and in connection with the evidence of such statements the sheriff was asked if he knew of Jenkins paying any money, or giving an order for any money, to any lawyer‘or person while he was confined in jail. lie stated that an-attorney, giving name, went to the jail while witness was there and told him he would like to have him witness an order, and to get him a pen and ink; that the-attorney wrote the order on a piece of paper, and said-to witness he would like him to witness the order Jenkins was to sign on Dr. McRae for fifty dollars. The-order was written in the jail, signed by Jenkins in presence of witness and witnessed by him. The witness further stated that he did not recollect whether he noticed on the paper itself to whom it was addressed, bnt it was an order on somebody for money. Being asked if he could recall the order, said that when he signed it — his recollection was — that he was signing an. order on Dr. McRae. He was further asked if he could recall what Dr. McRae the order referred to, and said: “ Only this way, that the only Dr. McRae that we had talked about was Dr. McRae at Sanford; I supposed he lived there, somewhere in Orange county.” The witness did not know Dr. McRae. It appears from other evidence that Dr. McRae of Sanford was the father of Williará A. McRae, one of the codefendants of Jenkins, and also that Jenkins had been working for and staying with the son on the McRae place, near the Packwood place, for some time before the murder.

It appears further from the evidence that one Isaiah Adams, who was confined in the Duval county jail with Jenkins, was examined by the State in reference to statements made by Jenkins in jail touching the murders at the Packwood place, and, in that connection, stated that he, witness, wrote a letter for Jenkins to DrMcRae for money. He further stated that Jenkins told him “to say in the letter that they wanted him to swear that Mr. McRae and Clinton were connected with that murder, and he would not do anything of the kind.” The letter after being sealed and delivered to Jenkins was passed-out to a trusty girl, also an inmate of the jail, and witness never saw it after it was handed to the girl. Witness knew Dr. McRae personally, and the letter was directed to Sanford.

The defendants objected to the testimony of the sheriff in reference to giving the order on Dr. McRae on the ground that it was irrelevant and immaterial evidence, and insisted that it had nothing to do with the case. The judge stated that it was difficult to tell, where everything was circumstantial, what relevancy it may have; it didn’t appear to him to be relevant then, because he did not know its object, and if it was not made relevant, defendants could move to strike it out. The objection made was overruled, and defendants excepted. Further objection was made by defendant Jenkins to the testimony of the sheriff by moving to strike it out, and this motion was denied. The testimony, other than that in reference to the order for the money, need not be stated. After the motion on behalf of the defendant Jenkins to strike out the testimony of the sheriff had been overruled, the defendants McRae and Clinton objected to the testimony bearing upon the case against them, on the ground that they were not present, and the court stated that the testimony could not be used against them if not pi’esent. Counsel for the State also stated that the testimony would not be used against them.

It is competent to introduce any and all evidence that is material and relevant, and that tends to prove the guilt or innocence of the accused. In cases of circumstantial evidence, every fact from which the jury may legitimately deduce guilt or innocence is proper to be submitted to them, and although the relevancy of any fact, when standing alone, may not be apparent, yet, when taken in connection with any other fact, or all the other facts, properly admitted, its relevancy is made to appear, it should go to the jury for their consideration. This rule thus broadly stated should not, however, in cases of purely circumstantial evidence, any more than in others, be carried to the extent of infringing upon another rule, that all evidence should be confined to the question in issue, and tend to prove some essential fact involved in the issue in the case. The view expressed in State vs. Meader, 54 Vt. 126, was approvingly quoted by this court in the Newton -case, to the effect that the admission of illegal evidence, if objected to, though under an offer of connecting it with other proof that would render it competent, and though charged out of the case by the court, is a cause for setting aside a verdict, unless the court is able to say affirmatively that it worked no injury to the adverse party. It was also said that ‘‘it is a well-settled rule of law that when the error is in the admission of illegal evidence which bears in the least degree on the question in issue, it can not be disregarded.” In cases depending solely upon circum.stantial evidence the court should pennit nothing that bears upon the case in the least to go to the jury, unless warranted by law or the rules of evidence. Testimony that does not tend to prove motive, or establish some other material fact essential to the crime charged, should not be admitted, and especially when it may tend to produce an erroneous impression on the minds of the jurors to the prejudice of the accused. These elementary principles in the introduction of evidence are well established. We do not see that any legitimate inference that Jenkins was connected with the murder at the Packwood place can be drawn from giving the order in question. He was not at that time under arrest for, or charged with, the murder, but was in custody for another and different offense. The record does not affirmatively show that Dr. McRae owed Jenkins any money, and if any unfavorable inference is to be drawn from drawing the order, taken in connection with the letter written, the reasonable one is, that he was seeking to obtain money for the purpose of extricating himself from the charge under which he -was then in custody. The need of Jenkins for money on the order given was while he was in jail on a charge for violating the statutes of the United States, and the order was in favor of an attorney who appeared in the jail, and it is not shown to have any connection with the charge of murder against Jenkins. The fact that he had worked with the son on the McRae place may account for the order on Dr. McRae, but if it be legitimate to infer from it, taken in connection with the-statement in the letter to the effect that they were trying to get him to swear that Mr. McRae and Clinton were connected with that murder, and he would not do anything of the kind, that he was using improper means to extort money, still the legitimate inference, it seems to us, is that he was trying to get out of custody under a different charge than the one for which he and his codefendants were subsequently indicted. At the time the order was given none of the defendants are shown to have been under indictment for the-murders at the Packwood place, and to permit the order, given under the circumstances mentioned on the father of W. A. McRae, subsequently indicted, with Jenkins, to be considered as evidence on the trial for said murder, would be extending the proof of facts, from which a legitimate inference of guilt could be drawn, too far. The record does not show anything* material in reference to the order or letter further than as above stated. We do not know that Dr/McRae ever received any letter or order from Jenkins, nor is there any showing that the defendant W. A. McRae was ever connected with the order or letter, or ever knew anything about them. This testimony, while not affording any legitimate inference that the defendants were connected with the murder for which they were tried, is calculated, it seems to us, to produce an erroneous impression on the minds of the jury. The circuit judge stated at the time the testimony was admitted that he did not then see its relevancy, and we agree with him in this, and discover nothing further in the-evidence to make it relevant. It is true that the court stated that if the testimony was not made relevant, defendants could move to strike it out, but we do not see that they are precluded from insisting on the objection made to the introduction of the evidence by not, at a subsequent stage of the case, moving to strike it-out. The court can regulate-the order'of the introduction of evidence, but when irrelevant testimony is-offered and objected to, and it is admitted on the theory that its relevancy may be shown by subsequent evidence, if such evidence'is not introduced the irrelevant-part should be excluded by the court. We do-not overlook the fact that the court stated that the evidence in referencé to the order could not be used against McRae and Clinton, but we deem the evidenceimpKrper as against Jenkins, and its prejudicial character is that the jury may have been somewhat influenced by it to believe that the defendants were connected with the murder. How it could have any legitimate effect to establish guilt against Jenkins, without-operating to the prejudice of the other defendants, is difficult to see.

It is further insisted that all the testimony of Brow-' ard as to the statements of Jenkins should have been excluded from the consideration of the jury. Had proper exceptions been taken to this testimony, on the ground that such statements were not shown to-have been voluntarily made to the witness, a majority of the court are inclined to the view that the testimony should have been excluded, but as exceptions, on the-ground stated, were not properly made of record, further discussion of this objection will not be indulged, in here.

What was said in reference to the admissibility of the testimony of the accused before the grand jury disposes of the objections made as to their testimony before the coroner’s jury. Such testimony voluntarily .given before the coroner when they were not under arrest is competent, and when reduced to writing and signed by them, the writing itself is the proper evidence. This testimony when not reduced to writing and signed by them may be shown by witnesses who can testify of their recollection what it was.

Other objections to the admissibility of evidence insisted on here need not be considered. To the extent permitted by the court, we find nothing objected to by the accused and insisted on here to which they can justly complain.

The court charged the jury at the instance of the State as follows, viz: “That in cases of circumstantial evidence it is not necessary that the proof shall be conclusive; that it is sufficient if the jury believe from all the facts and circumstances of the case that the accused are guilty, and that they have no reasonable doubt in their minds of this fact. If the jury think that the facts in this case are all consistent with the supposition that the prisoners are guilty, and can not reconcile the circumstances produced in evidence with any other supposition than that of their guilt, it is their duty to find them guilty. All that can be required is not absolute and positive proof, but such proof as convinces them that the crime has been made out against the accused.” Objections are made to portions of this charge. The first one is to the following portion: “If the jury think that the facts in this case are all consistent with the supposition that the prisoners are guilty, and can not reconcile the circumstances produced in evidence with any other supposition than that of their guilt, it is their duty to find them guilty;” and the second objection is to the last sentence of the charge. It is claimed that instead of telling the jury that if they think that the facts in the case are all consistent with the supposition of guilt, the court should have said,, if the jury believe from the evidence beyond a reasonable doubt, etc. It is claimed further that the words-“beyond a reasonable doubt” should have been added to the last sentence of the charge. The entire charge must be looked to in considering the objections made. Smith vs. Bagwell, 19 Fla. 117, S. C. 45 Am. Rep. 12; Andrews vs. State, 21 Fla. 598; Pinson vs. State, 28 Fla. 735, 9 South. Rep. 706. The last clause of the-charge standing alone would be amenable to the objection made, but we find i'n the first clause of direction that the jury must have no reasonable doubt of the-sufficiency of the facts and circumstances of the case to establish guilt, and in the clause objected to the jury were told, in effect, that the facts of the case must all be consistent with the supposition that the prisoners were guilty, and irreconcilable with any other supposition than that of their guilt. Considering the entire charge, we do not see that the court excluded from the jury the requirement that they must believe from the evidence beyond a reasonable doubt that the defendants were guilty. The charge as an entirety enforces this requirement upon the jury. The objections urged against the charge are not good. The charge asserts-that in cases of circumstantial evidence it is nob necessary that the proof should be conclusive. As to the conclusiveness of evidence Mr. Starkie says: “What circumstances will amount to proof will never be matter of general definition; the legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury. On the one hand absolute, metaphysical and demonstrative certainty is not essential to proof by circumstances. It is sufficient if they produce moral certainty to the exclusion of every reasonable doubt.” This author also says that the circumstances should be of a conclusive nature and tendency. Such views have been approved by this court. Whetston vs. State, 31 Fla. 240, 12 South. Rep. 661; Kennedy vs. State, 31 Fla. 428, 12 South. Rep. 858.

At the request of the State the court further charged the jury that “in cases of this kind the conclusion to which the jury are conducted is that degree of certainty that they would come to in their own grave and important concerns, and that is the degree of certainty which the law requires, and which will j ustify them in returning a verdict of guilt from all the facts and circumstances laid before them. That the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of their guilt.” This charge distinctly directs the jury that the degree of certainty which the law requires and which will justify them in finding a verdict of guilty on circumstantial evidence is that to which they would arrive in their own grave and important concerns. This charge is wrong, and lays down an improper standard for the guidance of juries in arriving at conclusions from the evidence in criminal cases.. The subject-matter of this charge was thoroughly considered in the case of Lovett vs. State, 30 Fla. 142, 11 South. Rep. 550, and we do not deem it necessary here to go into any extended discussion of the cases bearing on the point. There are -cases sustaining the view that the reasonable doubt which the jury must, entertain in order to convict, means that their minds must be so thoroughly convinced that they would act upon the conviction as they would in matters of the hignest concern and importance to themselves. State vs. Nash, 7 Iowa, 347; Polin vs. State, 14 Neb. 540. In the Lovett case this court approved the views announced by the California and Kentucky courts on the subject. The Kentucky court in the case of Jane vs. Commonwealth, 2 Met. (Ky.) 30, pronounced as improper and erroneous the following instructions, viz: ‘‘That the jury should weigh and consider all the facts and circumstances proven to their satisfaction, in connection and combination, and should hold them and pass judgment on them in that condition, and that if the conclusion from the facts and circumstances so proven to their satisfaction be that there is that degree of certainty in the case that they would act on it in their own grave and important concerns, that that is the degree of certainty which the law requires and which will justify and warrant them in returning a verdict of guilty.” The court said: “Men frequently act in their own grave and important concerns without a firm conviction that the conclusion upon which they proceed to act is correct; but having deliberately weighed all the facts and circumstances known to them, they form a conclusion upon which they proceed to act, although they may not be fully convinced of its correctness. But this degree of certainty is wholly insufficient to authorize a verdict of guilty in criminal cases. In such a case the jury should be fully convinced of the correctness of their conclusion that the prisoner was guilty, and that conviction should be so clear and strong as to exclude from their minds all reasonable doubt that their conclusion was correct.” The California and other courts endorse this view. People vs. Ah Sing, 51 Cal. 372; People vs. Bemmerly, 87 Cal. 117. The degree of certainty required by the law, as asserted by the charge before us, does not even demand that the jury should be so thoroughly convinced as that they would act upon the conviction as in matters of the highest concern and importance to themselves. It asserts that the-degree of certainty is such as they would reach in their own grave and important concerns. A charge containing such language was declared erroneous in the Kentucky decision cited. It is true that all through the instructions given to the jury by the court it is stated that the evidence must convince them of the-guilt of the accused beyond a reasonable doubt before they could convict, but the charge under consideration fixed a degree of certainty in weighing the evidence which was calculated to mislead the jury throughout the entire case, and we can not say that it did not do so.

We do not deem it necessary to refer to but one other charge excepted to and discussed by counsel for plaintiffs in error, and that is the third charge given at the instance of the State. It is not improper for the-court, when deemed necessary to do so, to tell the jury that the fact that unfortunate cases have occurred where innocent persons have been convicted upon circumstantial evidence, should not enter into their consideration of the evidence before them. So far as what is here stated is embodied in the charge referred to it is not objectionable, but the other features of the charge-should, in our opinion, be omitted.

Counsel for plaintiffs in error insist that the court erred in permitting argument of counsel for the State to go to the extent that it did. Some of the language-used by counsel for the State, and found in the bill of exceptions, does not appear to have been excepted to at the time the argument was made. The comments, of counsel in arguing a case before a j ury are controllable in the discretion of the trial coart, but this discretion is subject to review, "and when counsel make material statements outside of the evidence which are likely to do the accused an injury, it will be deemed an abuse of discretion when not stopped by the court on objection made. Newton vs. State, supra; Killins (alias Williams) vs. State, 28 Fla. 313, 9 South. Rep. 711; People vs. Aikin, 66 Mich. 460, S. C. 11 Am. St. Rep. 512. In Willingham vs. State, 21 Fla. 761, it was held that objections to the argument of counsel as being beyond the evidence or otherwise improper should be made at the time of such abuse of the right or. privilege of argument, and the action of the court overruling the objection, and the fact that exception was taken to such ruling, should appear with the objection in the bill of exceptions. The bill of exceptions recites as follows: “The defendants object to so much of the argument to the jury by Major Abrams, of counsel for the State, as is in the following language: I go further, and say that if these murders are not punished, the State of Florida is largely responsible for the failure of justice; that the State has failed and refused to furnish to its officer the adequate means to make conclusive every possibility — not merely probability, but every possibility — and that when the man who speaks before you succeeded in passing in the Senate of Florida a bill to furnish the State with the means for investigating all secret crime, it was laid on the table in the House, and that man who opposed the bill in the House was the member of the Legislature from Orange county who lives in Sanford.” We do not hesitate to express our disposal of the language quoted. There' was no testimony to authorize such comment, and it was calculated to prejudice the accused, as it was made to appear that the father of McRae, one of the accused, lived in Sanford.

So far as we can see there was nothing improper in counsel taking up a pistol that had been put in evidence, and stating that it had been identified as the pistol of one of the defendants. There was testimony tending to prove such fact. Nor was there any impropriety in counsel, during his argument, handing the pistol to the jury to be examined. The pistol had been put in evidence before the jury and testimony introduced as to its condition. The jury could properly examine the pistol to see its condition, and it was not improper for counsel to ask them to do so.

The other language used by counsel, and found in the record, does not appear to have been even objected to. and we will not refer to it.

After deliberation, the jury returned into court and announced that they had agreed upon a verdict, and handed to the clerk a paper signed by the jurors as follows, viz: “We, the jury, find the defendants guilty as charged, but recommend Marion Clinton to the mercy of the court.” The court declined to receive the return ¿s a verdict, and made certain statements to the jury in reference to their verdict. Counsel excepted to what the court said to the jury, and insist that the province of the jury was invaded. As the judgment must be reversed on other grounds, we do npt deem it necessary to specially consider the exceptions on this point, further than to call attention to some decisions bearing on it. We have held that a finding like the one referred to above in cases of homicide is under our statute a nullity, and no judgment or sentence can be pronounced upon it. Hall vs. State, 31 Fla. 176, 12 South. Rep. 449; Lovett vs. State, 31 Fla. 164, 12 South. Rep. 452; Murphy vs. State, 31 Fla. 166, 12 South. Rep. 453. In Grant vs. State, 33 Fla. 291, 14 South. Rep. 757, the jury returned a verdict of manslaughter in the first degree and the court refused to. receive it, stating to the jury at the time that the verdict was not in such form as could be received by the court, and directed the jury to retire and present a verdict in proper form. The trial of the case was under the Revised Statutes, abolishing degrees in manslaughter. We said that while it was entirely clear that the trial judge may send a jury back to the consultation room for the purpose of correcting their findings as to matters of informality or uncertainty, and when the issue had not been passed upon by them, yet the judge must not even suggest the alteration in substance of the verdict, and that the action of the judge in reference to the.correction of verdicts should be with great caution. In Bryant vs. State, 34 Fla. 291, 16 South. Rep. 177, the verdict was, we, the jury, find the prisoner guilty of murder in the first degree, and on objection to the form of the verdict by the State attorney, the court directed the jury to retire, and if they agreed to return a verdict of guilty of murder in the first degree against the prisoner, to name him in their verdict. This was held to be not improper. See also People vs. Bonney, 19 Cal. 426.

When a jury returns such a finding as the one stated in this case, the case is still in. their hands, and their duty in the premises remains undischarged. The court can not consider such a finding as being a verdict of murder in any degree, a.nd can not, of course, then any more than at any other time intimate to the jury what their verdict should be.

The judgment of the court below is reversed and a new trial awarded.