Coolman v. State. water v. State, 153 Ind. 560, 563. The court did not err in refusing to give the instruction. Instruction numbered nineteen tendered by appellant, reads thus: "The presumption is that the owner of property is entitled to the possession of the same until the contrary is shown. The court therefore instructs you, gentlemen of the jury, that if you find from all the evidence in this case that the real estate upon which the alleged crime was committed was owned by Emma E. Stallsmith and her minor daughter by a former marriage, Pearl Shrader, as tenants in common, and that the said Pearl Shrader lived and resided in the dwelling thereon, and that the defendant was upon said premises at the invitation and with the consent of the said Pearl Shrader, unless the State has proved beyond a reasonable doubt that the said Pearl Shrader, at the time she invited or consented to the defendant entering upon said premises, had in legal manner released or relinquished her right so to permit the defendant to enter and be upon said premises, then I charge you that you can not find that the defendant was at a place where he had no right to be." The fact that Pearl Shrader, the minor stepdaughter of the deceased, owned an interest in the land on which the deceased resided with his wife and family, did not give the stepdaughter the right to license or authorize the appellant to remain upon said land after the deceased, who was the responsible head of the family, ordered him to leave. It was not incumbent upon the State to prove that the stepdaughter had relinquished any of her rights in the premises. If her stepfather was in possession and had the general control of the premises as husband and father, while he was recognized as the head of the family he had the right to exclude the appellant therefrom, even if the appellant came there as a visitor or suitor of the stepdaughter. Commonwealth v. Wood (1867), 97 Mass. 225; Commonwealth v. Carroll (1878), 124 Mass. 30; Commonwealth Coolman v. State. v. Hill (1887), 145 Mass. 305, 14 N. E. 124; Elijah v. Taylor (1865), 37 Ill. 247; Davis v. Watts (1883), 90 Ind. 372. Counsel for appellant next complain of the seventh, twelfth, thirteenth, fourteenth, and fifteenth instructions which were given at the request of the State. The seventh was as follows: "If you should find from all the evidence in the case beyond a reasonable doubt that the defendant did shoot and kill Frank H. Stallsmith, using a deadly weapon in such manner as was likely to and did produce death, the purpose on the part of the defendant to kill may be inferred from the act itself. And if you should further find from all the evidence, beyond a reasonable doubt, that the killing was done purposely, without sufficient justification, legal excuse, or reasonable provocation, then malice may also be inferred from such act." We discover no error in this instruction. The twelfth, thirteenth, fourteenth, and fifteenth instructions, given at the instance of the State, related to the authority of the deceased to order the appellant from the premises, and to compel his departure therefrom. As already stated in this opinion, if the deceased, as the head of the household, was living on the premises with his wife. and stepdaughter, who were the owners of the farm, he had the right to say whether the appellant should come upon such lands as a visitor, or should remain after entering thereon. No question of the title to or ownership of the land was involved in the case, and under the proof such ownership had nothing to do with the rights of the parties. The instructions objected to were in harmony with this view of the law, and we find no error in them. After the jury had retired to deliberate on their verdict, in the absence of the defendant and his counsel, and out of the presence and hearing of the judge of the court, the foreman of the jury said to the bailiff, who had been called to the door of the room in which the jury were kept: "We Coolman v. State. can't agree upon a verdict, and have agreed to disagree." The bailiff answered that he would go and see the judge. After doing so, he returned to the door of the room and said to the foreman: "The judge says that he can not receive a verdict of disagreement; that he is going out to his cottage at Shriner lake, and will not be back until between 6 and 7 o'clock; and that if you agree before that time he will receive the verdict when he returns, and if you have not agreed at that time he will receive your verdict when you do agree." The foreman then said to the bailiff: "But we must agree to disagree." To this, the bailiff replied: "O, pshaw, Henry!" and closed the door. This is the statement contained in the counter-affidavit of the bailiff, filed on behalf of the State, and presents in its most. favorable light for the State all that took place between the bailiff and the foreman of the jury. It was not proper for the judge to make any communication to the jury after they had retired, except in open court, and in the presence of the defendant or his counsel. Hall v. State (1856), S Ind. 439; Quinn v. State (1892), 130 Ind. 340; People v. Knapp (1879), 42 Mich. 267, 3 N. W. 927, 36 Am. Rep. 438. The conduct of the bailiff in holding a conversation with the foreman, in which he told the latter that the judge could not receive a verdict of disagreement; that the judge was going away to be absent until 6 or 7 o'clock, and would, on his return, receive the verdict if they had agreed, otherwise he would receive it when they did agree; the remark of the foreman, "But we must agree to disagree"; and the response of the bailiff. "Oh, pshaw, Henry!" were grossly improper. Rickard v. State (1881), 74 Ind. 275; People v. Knapp, supra. Their prejudicial effect on the minds of the jury may be conclusively presumed. The foreman had reported that the jury were unable to agree. The jury had been deliberating for twenty hours when this conversation took place. Within two hours thereafter, the jurors changed their views, a Coolman v. State. verdict was agreed upon, and the punishment of the defendant was fixed at imprisonment for life. We need not speculate in regard to the effect of the communication so made. The statute expressly prohibits the bailiff from speaking to the jury unless by order of the court, or to ask them whether they have agreed upon their verdict. $1897 Burns 1901. In the case before us there was a flagrant violation of this rule, which was speedily followed by a startling change of opinion on the part of the jury. The statement of the bailiff to the foreman that the jury could not agree to disagree; that the judge would return between 6 and 7 o'clock to receive the verdict if they did agree, and if they had not he would receive it when they did agree-may well have been understood as a warning from the court that no disagreement would be permitted, and that he would keep them together until they did agree. Coming from the judge himself in the court room, in the presence of the defendant and his counsel, such a statement would have been improper. Made by a bailiff, at the door of the jury room, in the absence of court, defendant, and counsel, and embellished by a contemptuous reference to the possibility of an honest disagreement, it can not be too severely condemned. In view of the disposition which must be made of the case, we do not deem it proper to decide whether a new trial should have been granted upon the evidence. And as the judgment must be reversed because of the refusal of the court to give instruction numbered five tendered by the appellant, and because of the misconduct of the bailiff, we need not express an opinion upon any other questions, as they may not arise upon another trial. Judgment reversed, with instructions to sustain the motion for a new trial for the reasons herein stated, and for further procedings not inconsistent with this opinion. Jordan v. City of Evansville. JORDAN v. CITY OF EVANSVILLE. [No. 20,310. Filed November 29, 1904.] INTOXICATING LIQUORS.-License.-Delegation of Police Power to Munici- SAME. The right to sell intoxicating liquor is not one of the privileges SAME.-Power of State to Delegate Authority to License.—A statute delegating From Vanderburgh Circuit Court; L. O. Rasch, Judge. Action by the city of Evansville against Fred L. Jordan to recover a penalty for the violation of an ordinance of such city requiring persons engaged in the sale of intoxicating liquors within four miles of the corporate limits of such city to take out a city license. From a judgment in favor of plaintiff for $50, defendant appeals. Affirmed. E. J. Crenshaw, for appellant. A. W. Funkhouser, for appellee. MONKS, J.-This action was commenced in the police court of the city of Evansville against appellant to recover a penalty for the violation of an ordinance of the city requiring a license to retail intoxicating liquors within four miles of the corporate limits. A trial of said cause resulted in a finding and judgment in favor of appellee. From this judgment appellant appealed to the court below, where he was again convicted. |