v3243-235

"record shows affirmatively that appellant was not

prejudiced, then the error does not require re-

versal. (Citing cases) . Finally, if the record

shows error, but does not disclose whether the

error is prejudicial or whether it is not pre-

judicial, it is presumed to be prejudicial and to

require reversal. (Citing cases).

"The instant case is not one where the

1

whole jury was instructed directly by the court

either orally or in writing. By instructing one

juror to instruct the rest of the jury, the in-

struction was in fact given to the jury in the

absence of appellants, their counsel and out of

court, for the juror relaying the instruction would

necessarily have done so in the jury room. On that

theory, reversal is required. (Citing cases).

Further, we have the case where no one knows what

the juror told the rest of the jury. If he repeated

correctly the judge's instruction, the error would

not be prejudicial. If he did not, the error may

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archive.org Volume Name: govuscourtsca9briefs3243

Volume: http://archive.org/stream/govuscourtsca9briefs3243

Document Link: http://archive.org/stream/govuscourtsca9briefs3243#page/n234/mode/1up

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