
    No. 132
    DILLON, alias v. STATE
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1500.
    Decided Nov. 8, 1926
    Judges Mauck, Sayre and Middleton, 4th Dist., sitting.
    95. ARGUMENT — Where prosecuting attorney in argument to jury, reads statement, from opinion of Court of Appeals in a case where said court had virtually found that accused was on premises with another defendant who had been convicted of burglary and whose case the Court reviewed, affirming the conviction, it is highly prejudicial to accused and judgment will be reversed therefor.
    First Publication of this Opinion
    Attorneys — Raymond J. Logan and Edward J. Greeley for Dillon; John R. King and Paul Hicks for State; all of Columbus.
   SAYRE, J.

Vincent Dillon was convicted of burglary and grand larceny in the Franklin Common Pleas. Herbert Meyers had al$s<f been c.onvict-ed of the same offense and hád prosecuted error to the Court of Appeals. During the closing argument of the prosecuting attorney in the instant case, he read from the opinion of the Court of Appeals affirming Meyers’ conviction. ,

Another error assigned was the fact that after the jury had retired one of the jury got permission from the trial judge to answer a phone call, she was escorted to the phone by a bailiff and talked in the presence of the trial judge, but not in the presence of the accused and his attorneys. Upon error, the Court of Appeals held:

1. As the principal question was whether Dillon was on the premises with Meyers the morning preceeding the rime, to read to the jury the statement of the reviewing court that such was the fact, was almost, if not altogether, as harmful as it would have been for the trial court to make that statement in his charge.

2. The action of the court in permitting the statement to be read was erroneous and highly prejudicial.

3. Although the judgment will not be set aside on the ground that a juror was allowed to talk over the telephone, the action of the court in permitting it is improper, for while he heard the conversation of the juror he could not know what was being said by the person talking to her. A communication to be made by a juror upder these circumstances should be made where court and counsel may hear all.

Judgment reversed and cause remanded.

(Mauck, PJ., and Middleton, J., concur.)  