fidavit that he based his verdict solely on the evidence, and was not influenced against defendant by the contents of the Code. Only the affidavit of Verry, then, can be regarded as asserting the influence of what occurred on the verdict, and this portion should be disregarded, as inhering in the verdict. Undoubtedly, affidavits of facts occurring in the jury room after submission of the case, and even that the jury talked of these, are competent. Douglass v. Ange, 125 Iowa, 67, 99 N. W. 550; Brown Land Co. v. Lehman, 134 Iowa, 712, 112 N. W. 185, 12 L. R. A. (N. S.) 88. But it is not competent to show by affidavit of jury what influenced the verdict; for this is necessarily mere matter of opinion, and essentially inheres in the verdict itself. State v. Dudley, 147 Iowa, 645, 126 N. W. 812. If what occurred, however, amounted to misconduct, and was of such a character that it likely did influence the result of the trial, or this may be said to have been reasonably probable, it is enough, regardless of any such showing of such influence in fact, to invalidate the verdict and exact a new trial. That it was misconduct on the part of the bailiff to hand the Code to the jurors, and of them to receive it, cannot be questioned; but whether this can be said to have wrought prejudice to defendant is quite another question. It will be observed that all the jurors ascertained from the Code were the penalties attached to the crimes included in the indictment-that the penalty for murder in the first degree was death or imprisonment in the penitentiary for life; for murder in the second degree, imprisonment in the penitentiary for life, or for a term of not less then ten years; and for manslaughter, imprisonment in the penitentiary not exceeding eight years and fine not exceeding $1,000. Prior to 1907 the district judge, in sentencing a prisoner, might, in his discretion, impose the minimum penalty fixed by statute. Thereafter under the indeterminate sentence law enacted by the Thirty-Second General Assembly (Acts 32d Gen. Assem., c. 192, § 9), in cases other than treason or murder, "the court imposing a sentence of confinement in the penitentiary shall not fix the limit or duration of the same, but the term of such imprisonment shall not exceed the maximum term provided by law for the crime of which the prisoner was convicted." Section 5718a13, Code Supp. Under this law, a board of parole was organized with powers defined in section 5718a18:

"The board of parole shall have power to establish rules and regulations under which it may allow prisoners within the penitentiaries other than prisoners serving life terms to go upon parole outside of the penitentiary buildings, inclosures and appurtenances, but to remain while on parole in the legal custody of the wardens of the penitentiaries and under the control of the said board of parole and subject, at any time, to be taken back and confined within the penitentiary." It may, on the recommendation of the trial judge and county attorney, and when it shall appear that the good of

society will not suffer thereby, parole, after conviction and before commitment, persons not previously convicted of a felony; "and the board shall have full power to enforce such rules and regulations and to retake and reimprison any such paroled convict. The order of said board certified by its secretary shall be a sufficient warrant for any peace officer to arrest and take into actual custody or to return to the penitentiary specified in the order any prisoner conditionally released or paroled by said board; and it is hereby made the duty of all peace officers to execute such order the same as any other criminal process and they shall receive the same fees as sheriffs for like services, the same to be paid out of the appropriation made herein, but no person shall be released on parole before the expiration of the maximum term provided by law for the punishment of the crime of which he was convicted until the board of parole shall have satisfactory evidence that arrangements have been made for his employment or maintenance for at least six months. The time when a prisoner is upon parole or absent from the penitentiary shall not be held to apply upon his sentence if he shall violate the terms of his parole."

Section 5718a20 also declares that:

"It shall be the duty of the board of parole to keep in communication, so far as possible, with all persons who are on parol and when, in their opinion, any prisoner who has served not less than twelve months of his parole acceptably, has given such evidence as is deemed reliable and trustworthy that he is and will continue to be a law abiding citizen and that his final release is not incompatible with the welfare of society; and when the said board of parole shall have procured, so far as possible, all facts relating to the history of such paroled prisoner, both before and after his confinement and parole, and his record while detained, the board of parole shall recommend to the Governor the discharge of such prisoner from further liability under his sentence. Said recommendation shall be entered on a proper record, kept by said board for that purpose, and a certified copy of the order of discharge, when made, by the Governor, shall be filed with the clerk of court in which said prisoner was sentenced to the penitentiary. All papers and documents relating to the pardon of any person shall, upon the granting of such pardon, become a part of the files of the Governor's office."

It will be observed that the sentence, under the law as it now stands, is to be in the language of the statute defining the punishment for manslaughter, and the only misunderstanding the jury could have had was in supposing the discretion in making the penalty less severe was lodged in the trial judge, rather than the board of parole and Governor, and that involved in defining the extent of punishment in advance rather in exacting that this be done on subsequent investiOf gation of his worthiness of clemency. course, the jury had no assurance of what the trial judge would do, and must have known that, notwithstanding their recommendation to mercy, he might impose the full penalty. They were merely imagining what he would do if they entered into that realm at all, and, if they did, there is nothing to indicate that the length of term they may have guessed the court would impose would exceed that which might result from the action of the board of parole and Governor. No inducement whatever was held out to them that the slightest attention would be accord

the charge, the court held that there could have been no prejudice.

ed by the court to their recommendation to mercy, and the mere fact that they were aware of the penalty, which the court was In Gandolfo v. State, 11 Ohio St. 114, the bound to impose in the language of the stat- court sent the statutes to the jury on their ute or its equivalent, instead of exercising a request with reference to sections which he discretion, as they supposed, ought not to had probably just read to them, and it was have diverted from their sworn duty of remarked on appeal that the court was not determining whether the defendant was guilty able to say this was improper. The jurors from the evidence alone, guided by the in- are under oath to return a verdict according structions of the court. Notwithstanding all to the evidence and instructions of the court, this, the jury did procure the Code in order and therefore are bound to follow the into ascertain the punishment to be imposed, structions of the court as the law of the case. and this for the evident purpose of taking This is the only legitimate mode in which the punishment into account in determining they can receive the information necessary to the issue as to defendant's guilt. Had their enable them to apply to the facts before them information been complete and accurate, the rules by which they are to be guided and there might have been no prejudice, but, in governed in the performance of their duty. usurping the court's authority to construe To allow them to obtain information as to the law, they overlooked the indeterminate the law from any other source would tend to sentence law, and thereby obtained an er- confuse, as also it would if they were permitroneous conception of the punishment to be ted to act on their own preconceived notions administered, and it cannot fairly be said of what the law is. They are expected to folthat they likely were not somewhat influ-low with scrupulous fidelity the instructions enced thereby. The difference has already as given by the court. This is essential not been pointed out, and no one could well con- only in order that there may be a uniform tend that a definite sentence by the court and consistent interpretation and application would ordinarily seem to the average man of the rules of law, but also that these be sitting on the jury otherwise than much less made certain to the end that the rights and severe than the maximum penalty, with the duties of litigants be protected and enforced contingency of a subsequent parole and par- in the courts of justice. Were the practice don. otherwise, it would be impossible to know upon what theory of the law the jury may have proceeded, and, although the law may have been laid down by the court with preciseness and accuracy, there could be no certainty that it would be and had been acted upon by the jury, and there would be no way of ascertaining the principle by which cases have been determined, and therefore no basis for a review. The safe mode of conducting trials is for the court to instruct the jury upon all material points before they retire to deliberate upon their verdict, and, if they have occasion for further information, let them return to the court and indicate the questions upon which they wish further advice, and receive in open court such direction as the judge may deem proper.

Instructions that the jury is the judge of the law as well as of facts have been condemned, and the sending with the jury of statutes or session laws for their information frequently have been held to constitute error. Merrill v. Nary, 10 Allen (Mass.) 416; Harris v. State, 75 Tenn. (7 Lea) 538; State v. Layman, 22 Idaho, 387, 125 Pac. 1042. Also allowing them access thereto or to treatises or reports on the subject involved in the trial has been condemned. Newkirk v. State, 27 Ind. 1; Hardy v. State, 7 Mo. 607; Harrison v. Crow Hance, 37 Mo. 185; State v. Smith, 6 R. I. 33; Johnson v. State, 27 Fla. 245, 9 South. 208; Burrows v. Unwin, 3 C. P. 310; In Wilson v. People, 4 Parker's Cr. R. 619, handing a paper on which was written the penalties for the degrees of murder and manslaughter was held without prejudice by the trial judge, owing to instructions being sub-into account the indeterminate sentence law, sequently given and the nature of the issue, but the judgment was reversed on appeal because of another error.

In People v. Gaffney, 14 Abb. Prac. (N. S. N. Y.) 36, the jury had the Revised Statutes of New York before them, defining the of fenses of "murder" and "manslaughter" during their deliberations, and inasmuch as the jury were clearly and fully instructed as to these offenses, and their verdict was the only one which could have been returned under

The inference is warrantable not only that the jury misconstrued the law in not taking

but allowed such misconstruction to influence their verdict. At least it cannot be said, in view of their situation, that this did not happen, and for this reason it cannot be affirmatively found that prejudice did not result from the jury's misconduct.

The judgment is reversed and the cause remanded.

DEEMER, GAYNOR, and WITHROW, JJ., concur.

[1] 1. The first point argued and relied upon for reversal is the alleged misconduct of M. J. Tobin, one of the attorneys for the state, in his closing address to the jury. The part of the closing argument objected to is the statement that Mr. Ruhl, the prosecut[Ed. Note. For other cases, see Criminal ing witness, was poisoned. The substance of Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. the record, and the part of the argument ob823.*] jected to, is as follows:

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

"Snyder went outside of this record, without have referred to a divorce case between the intending to do any wrong, in my judgment, to Ruhls since the trial of the instant case, say that Lee Ruhl brought upon himself his own sickness, because of paralysis or breaking down in which they wish this court to infer that of the nerves; and Northup went outside of this the trial court refused to grant a divorce to record to say that perhaps it was the act of Mr. Ruhl because of the adultery of his wife, Almighty God for wrongs that he had never and counsel for the state respond to that committed. I want to tell them, so they will never get it into their minds again, that it was by saying that a divorce was granted on the neither. Lee Ruhl was poisoned. That is what ground of desertion. is the matter with Lee Ruhl.

That defendant did not leave the house at

stances relied upon as tending to show such | Hall, I don't think you have.' I says, 'I have intent are not disputed, while as to others never been accused of being mixed up with there is a conflict in the testimony. It is other women like you have heretofore." the province of the jury to determine the matter of the credibility of the witnesses and the weight which should be given to their testimony, and the sufficiency of the evidence where there is a conflict is for the jury. It is for the jury to say which of the witnesses they will believe and which they will disbelieve. State v. Lightfoot, 107 Iowa, 344, 78 N. W. 41.

[3] Under the circumstances, we deem it necessary to set out the substance of the testimony bearing upon this point, and this we shall do as briefly as may be.

L. G. Ruhl was 49 years of age, and his wife 44; they had six children, ranging from 6 to 21 years of age they had been married 23 years. At the time of the transaction in question they lived in Belle Plaine. Before moving to Belle Plaine, Ruhl had been a farmer; after that he ran a feed barn, teamed, and worked on the railroad. Defendant was engaged in the real estate business. His wife and a younger child went to California about May, 1911, and had not returned up to the time of the trial so far as the record shows. From about June, 1911, to some time in 1912, defendant and his two young men sons roomed in the home of the Ruhls.

him out of her room.

this time, after ordered to leave; that he did
not know when defendant did leave, but it
was while witness was away at work; that
he was working in Deep River, 25 miles dis-
tant from Belle Plaine, in the summer of
1912. Sometimes he would come home Sat-
urday evening and go back to his work Mon-
day morning; that. he came home one night
from Deep River-he thinks about August 29,
1912-and came through the back part of the
yard of his home and saw the defendant ly-
ing in the weeds and blackberry bushes,
which he says were about four feet high.
That defendant was stretched out full length
in the weeds. That this was about 40 feet
west of his house. That they saw each other
about the same time, and defendant yelled
and jumped, and they grappled. That they
both "hollered," and defendant said: "He
has got a gun on him; take it from him."
That a son of defendant came from the house
and tried to take the gun from the witness,
but witness said he would give the gun to
That witness de-
the boy, which he did.
manded to know of defendant what business
he had there, and defendant said, "I came to
see what you was doing." Witness says that

is all he could tell. That they had some fur-
ther words, and defendant went up the street.
Witness says that at that time he complain-
ed to defendant of his relations with Mrs.
Ruhl. That he told him very plain. That
he again told him to leave the place and stay
away. That he said, "Now, Hall, to-morrow
morning I want you to take everything out
of here that belongs to you and get out and
And defendant said, "I will."
stay out."
That defendant went back to his work about
3 o'clock that night. This transaction is not

denied. The son testified for the defendant

to taking the loaded revolver from Ruhl at

this time.

L. G. Ruhl testifies that since they moved to Belle Plaine, seven years before, he lived with his family and supported them; that up to the time defendant entered the home the relation of husband and wife existed between Ruhl and his wife, and that they occupied the same room; that after defendant came to the home Mrs. Ruhl began to treat him (Ruhl) coldly and finally locked At this time defendant was occupying rooms in the house. Ruhl testifies that defendant and his (Ruhl's) wife were very friendly, and that defendant seemed very attentive to her; that he would get novels from the library and read to her from Witness testifies to another transaction, them nights, in the presence of other members of the family at times, and at other when he came home from Deep River Suntimes alone; that defendant would follow day evening after dusk, before the Fourth her from room to room in the house and up-dren that his wife was at church; that he of July; he was informed by one of the chilstairs and down in the basement, and that defendant called her a jewel; that the read- started up the street and saw his wife and ing at night was of common occurrence, and defendant coming under the electric light, that he called her a jewel at different times; and the little girl some 40 or 50 feet ahead; that he would read to her as late as 11 that he thought they were locked arms, but o'clock at night; that he saw his wife in that they both denied it when later he acHall's room with Hall, but that the door cused them of it; that they came as far as the alley, and defendant said to her, "You was open and there was no concealment of the fact; that he talked to defendant in go on," and she went on ahead to the little regard to his relations with Mrs. Ruhl at one girl, and defendant stopped in the alley a little while and then went down the street; time and said to him:

""Look here, Mr. Hall, don't you know there that defendant did not know witness was is talk around here about my wife and you? I there at that time; that in the spring of don't want to ever catch you with my wife 1913, until after July 4th, he was working again. I want you to take your things now and nights at the freight depot, except a few move out. You know how ready people are to days he was working in the day; that one talk about anything. A man of your reputation ought to be more careful.' He said he had night in June, 1913, he worked during the