Ark. Code Ann. § 16-89-125 (2026)

Research References

ALR.

Propriety of Audio or Video Playback of Testimony or Statement to Jury. 65 A.L.R.6th 537.

Ark. L. Rev.

Case Note, The Deleterious Effects of Anderson and Flanagan on Section 16-89-125(e) of the Arkansas Code Annotated, 61 Ark. L. Rev. 551.

U. Ark. Little Rock L.J.

Derden, Survey of Arkansas Law: Criminal Procedure, 2 U. Ark. Little Rock L.J. 203.

Case Notes

Construction.

This section is mandatory and should be strictly followed. Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986); Huckabee v. State, 30 Ark. App. 82, 785 S.W.2d 223 (1990).

The provisions of this section requiring the judge to call the jury into open court to answer any questions the jury may have are mandatory; therefore, the judge could not answer the jury's questions by sending notes or a tape recording of the proceedings to the jury room. Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986).

ARCrP 33.3 does not contravene or modify this section. Bennett v. State, 302 Ark. 179, 789 S.W.2d 436Certiorari or review denied by498 U.S. 851, 111 S. Ct. 144, 112 L. Ed. 2d 110 (1990).

Applicability.

Section held not applicable. Hopes v. State, 294 Ark. 319, 742 S.W.2d 561 (1988).

This section held not to apply where court, in camera and outside the presence of counsel and the other jurors, examined one juror who wanted to know whether he could impart what he had seen to the other jurors. Clayton v. State, 321 Ark. 602, 906 S.W.2d 290 (1995).

Adjournment.

Court may, after receiving verdict on Sunday, adjourn over to another day. Eyer v. State, 112 Ark. 37, 164 S.W. 756 (1914).

Discharge Before Verdict.

It is competent for the court, where the jury cannot agree, to discharge them and hold the accused for trial on the same indictment by another jury, as also, where a juror in the course of a trial becomes so ill, or the prisoner becomes so sick, or in like cases of impossibility to proceed, but beyond this the authority of the court does not extend. Lee v. State, 26 Ark. 260 (1870).

A discharge of a juror without defendant's consent after he has been put in jeopardy operates as an acquittal, except in cases of overruling necessity, as the death or illness of the judge or a juror, or inability of the jury to agree on a verdict. Whitmore v. State, 43 Ark. 271 (1884).

Consent of a defendant that the jury may separate is not consent that one may absent himself and necessitate the discharge of the jury, and such a discharge without defendant's consent will operate as an acquittal. State v. Ward, 48 Ark. 36, 2 S.W. 191 (1886).

It is in the discretion of the court to excuse a juror for ill health. Hamilton v. State, 62 Ark. 543, 36 S.W. 1054 (1896).

In a criminal prosecution, the court may discharge the jury when the jury fails to agree upon a verdict and it satisfactorily appears to the trial judge that there is no probability of a verdict being reached. Carmen v. State, 120 Ark. 172, 179 S.W. 183 (1915).

Trial court did not abuse its discretion when it declared a mistrial after jury foreman reported deadlock. Beard v. State, 277 Ark. 35, 639 S.W.2d 52 (1982).

Evidence.

In a second-degree murder case, a trial court did not abuse its discretion by allowing testimony from a second doctor that personality disorders were not mental diseases in the context of this statute because testimony about what constituted a mental disease had previously been accepted; the challenged testimony simply embraced the issue of mental disease from a medical point of view, and it did not mandate a legal conclusion. Moreover, because a first doctor opined that a personality disorder was a mental disease in her report, and the report was entered into evidence, her opinion, despite being written and not oral, was evidence properly subject to rebuttal. Hajek-McClure v. State, 2014 Ark. App. 690, 450 S.W.3d 259 (2014).

Exhibits.

The court did not impermissibly comment on the evidence when it sent all of the evidence to the jury for review following a request by the jury to see a single piece of evidence. Goff v. State, 341 Ark. 567, 19 S.W.3d 579 (2000).

In defendant's murder case, there was no violation of subsection (e) of this section where the circuit court allowed the deliberating jury to replay defendant's recorded statements outside the courtroom; giving the tapes in question to the jury did not create the possibility that evidence that was never introduced at trial might be introduced in the jury room. Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006).

Ex Parte Communications.

Although it was inappropriate for the trial court to engage in any type of ex parte communication with the jury, the trial court's actions did not result in prejudice to the defendant where (1) when the jury sent out a question, it was discussed with both attorneys, and on at least one occasion, the attorneys were present with the judge at the jury room door when the jury asked a question, and (2) the trial court presented the jury's questions to the court reporter so that the information could be transcribed on the record. Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (Ark. 2001).

Extraneous Information.

Trial court did not err in allowing the jury to have an atlas during deliberations because the trial court followed the procedures of subsection (e) and prejudice was not presumed, even if the trial court abused its discretion in allowing the jury to have the extraneous information; the jury deliberated for some time after receiving the atlas and the court did not see how defendant might have suffered prejudice in this regard. Fisher v. State, 84 Ark. App. 318, 139 S.W.3d 815 (2004).

Instructions Generally.

For cases discussing instructions which must be in writing, see: Wallace v. State, 28 Ark. 531 (1873); Palmore v. State, 29 Ark. 248 (1874); Polk v. State, 36 Ark. 117 (1880); Fitzpatrick v. State, 37 Ark. 238 (1881); Mazzia v. State, 51 Ark. 177, 10 S.W. 257 (1888); Burnett v. State, 72 Ark. 398, 81 S.W. 382 (1904).

It is error to give inconsistent and conflicting instructions. Smith v. State, 55 Ark. 259, 18 S.W. 237 (1891); Selden v. State, 55 Ark. 393, 18 S.W. 459 (1892); Frazier v. State, 56 Ark. 242, 19 S.W. 838 (1892); Vaughan v. State, 58 Ark. 353, 24 S.W. 885 (1894); Jones v. State, 89 Ark. 213, 116 S.W. 230, 1909 Ark. LEXIS 77 (1909).

Instructions should be applicable to opposing theories of the parties, and should declare the law applicable to any of the facts which upon the evidence may be taken by either party. Vaughan v. State, 57 Ark. 1, 20 S.W. 588 (1892).

Court must not say how much weight should be given to any state of facts. Denmark v. State, 58 Ark. 576, 25 S.W. 867 (1894); Sons v. State, 116 Ark. 357, 172 S.W. 1029 (1915).

It is error to refuse to give a proper instruction as to reasonable doubt. Terrell v. State, 69 Ark. 449, 64 S.W. 223 (1901); Bruce v. State, 71 Ark. 475, 75 S.W. 1080 (1903), overruled, Horton v. Jackson, 87 Ark. 528, 113 S.W. 45 (Ark. 1908).

For cases discussing necessity for requesting instructions, see: Vasser v. State, 75 Ark. 373, 87 S.W. 635 (1905); Jackson v. State, 92 Ark. 71, 122 S.W. 101 (1909); Roy v. State, 102 Ark. 588, 145 S.W. 190 (1912); Carlton v. State, 109 Ark. 516, 161 S.W. 145 (1913); Tiner v. State, 115 Ark. 494, 172 S.W. 1010 (1914); Webb v. State, 154 Ark. 67, 242 S.W. 380 (1922); Judd v. State, 192 Ark. 1178, 96 S.W.2d 604 (1936); Roberts v. State, 254 Ark. 39, 491 S.W.2d 390 (1973); Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979); Byers v. State, 267 Ark. 1097, 594 S.W.2d 252 (Ct. App. 1980); Schwindling v. State, 269 Ark. 388, 602 S.W.2d 639 (1980).

All the instructions are to be read and construed as a whole and are entitled to a reasonable interpretation. Arnott v. State, 109 Ark. 378, 159 S.W. 1105 (1913).

For cases discussing argumentative instructions, see: Moore v. State, 109 Ark. 475, 160 S.W. 206 (1913); Price v. State, 114 Ark. 398, 170 S.W. 235 (1914).

Court should not single out specific features of a case and emphasize them in separate instructions, but should submit all the facts and circumstances together for the consideration of the jury. Price v. State, 114 Ark. 398, 170 S.W. 235 (1914); but see Tillman v. State, 112 Ark. 236, 166 S.W. 582 (1914).

Abstract instructions should be refused. Beavers v. State, 54 Ark. 336, 15 S.W. 1024 (1891); Stevens v. State, 117 Ark. 64, 174 S.W. 219 (1915).

General instructions may be cured by specific ones. Zinn v. State, 135 Ark. 342, 205 S.W. 704 (1918).

Attorneys may read the instruction to the jury. Davis v. State, 155 Ark. 245, 244 S.W. 750 (1922)Questioned byAllison v. State, 204 Ark. 609, 164 S.W.2d 442 (1942).

Failure of court to instruct jury on presumption of innocence at the beginning of the trial did not constitute error, as instructions are to be made at the conclusion of the evidence. Ricketts v. State, 254 Ark. 409, 494 S.W.2d 462 (1973).

A trial judge does not have to give an instruction where there is no evidence to support the giving of that instruction. Blair v. State, 284 Ark. 330, 681 S.W.2d 374 (1984).

While the trial court may have erred in instructing the jury prematurely, the preliminary instructions occasioned defendant no prejudice and, though error, were harmless. Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994).

—Insanity.

Failure of court to instruct jury that if they acquit defendant on the ground of insanity to state that fact in their verdict, was harmless, where the jury did not acquit him. Downs v. State, 231 Ark. 466, 330 S.W.2d 281 (1959).

The jury is not to be told the options available to the trial court when a defendant is found not guilty by mental defect or disease. Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991).

—Objections.

Objection to part of instruction must be specific, not general. Thomas v. State, 74 Ark. 431, 86 S.W. 404 (1905); Burnett v. State, 80 Ark. 225, 96 S.W. 1007 (1906); Jackson v. State, 94 Ark. 169, 126 S.W. 843 (1910); Cox v. State, 99 Ark. 90, 136 S.W. 989 (1911); Burgess v. State, 108 Ark. 508, 158 S.W. 774 (1913); Banks v. State, 133 Ark. 169, 202 S.W. 43 (1918).

A series of instructions which supplement each other and, taken as a whole state the law correctly, is not objectionable, though some of them, standing alone, are objectionable for stating the law incompletely. Satterwhite v. State, 82 Ark. 64, 100 S.W. 70 (1907).

Exceptions in gross to several instructions will not be considered if any of them are correct. Johnson v. State, 84 Ark. 95, 104 S.W. 929, 1907 Ark. LEXIS 157 (1907); Bruder v. State, 110 Ark. 402, 161 S.W. 1067 (1913).

Jury Disagreement or Confusion.

Trial court's discretion should extend to a determination of whether or not the jury has expressed sufficient disagreement or confusion over some aspect of the testimony, thereby warranting a repeat of some portion of it. McKinney v. State, 303 Ark. 257, 797 S.W.2d 415 (1990).

The question of whether a jury is in sufficient disagreement or confusion to merit the requested information should be examined on a case by case basis, and although the request should not be granted merely to refresh a juror's recollection, it is not necessary for a literal argument to arise between jurors before they can receive requested evidence. McKinney v. State, 303 Ark. 257, 797 S.W.2d 415 (1990).

Because at least one juror was in doubt about a certain part of the evidence, it was not prejudicial for the trial court, pursuant to subsection (e) of this section, to play a part of the defendant's testimony for the jury. Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003).

Although failure to comply with subsection (e) of this section, requiring the jury to return to court if there is a disagreement or question, gave rise to a presumption of prejudice, the notes exchanged between the court and jury were included in the record, and petitioner failed to show any prejudice from the procedure that was followed. Davis v. State, 2013 Ark. 118 (2013).

Keeping Jurors Together.

It is within the discretion of the trial court to permit the jury to separate, or keep them together, before or after the case is submitted to them. Johnson v. State, 32 Ark. 309 (1877); Armstrong v. State, 102 Ark. 356, 144 S.W. 195 (1912).

Permitting jury to occupy separate cabins was not error, where evidence showed jury did not communicate with outside persons and nothing occurred to influence them. Smith v. State, 194 Ark. 264, 106 S.W.2d 1019, 1937 Ark. LEXIS 335 (1937).

Although it may be preferable to sequester the jury, it is a matter upon which the trial court must decide; the burden of proof to show that defendant did not receive an impartial trial because of failure to sequester the jury is upon defendant. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982), cert. denied, Ford v. Arkansas, 459 U.S. 1022, 103 S. Ct. 389 (1982).

Noncompliance.

Noncompliance with this section gives rise to a presumption of prejudice, and the state has the burden of overcoming that presumption. Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986); Huckabee v. State, 30 Ark. App. 82, 785 S.W.2d 223 (1990).

Where the judge went into the jury room, by agreement of counsel, to answer the jury's questions concerning the defendant's sentence and parole eligibility, the state did not meet its burden of showing what occurred; therefore, the trial judge's violation of this section must be deemed to have been prejudicial to the defendant and was reversible error. Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986).

Where juror asked trial judge a question concerning testimony of one of the witnesses, after jury had begun deliberations, and judge answered, and record did not contain the conversation and attorneys were not given opportunity to object, there was no compliance with subsection (e). Huckabee v. State, 30 Ark. App. 82, 785 S.W.2d 223 (1990).

Where trial judge orally gave jury ten instructions before opening statements and gave two more at the end of the trial but refused to grant defendant's motion to repeat all of the instructions, action of trial judge in giving all but two of the oral instructions at the beginning of trial violated this section and was reversible error. Bennett v. State, 302 Ark. 179, 789 S.W.2d 436Certiorari or review denied by498 U.S. 851, 111 S. Ct. 144, 112 L. Ed. 2d 110 (1990).

Noncompliance with subsection (e) of this section gives rise to a presumption of prejudice, and the state has the burden of overcoming that presumption. Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993).

If the procedure mandated by this section is not followed by the trial court, the state bears the burden of proving that no prejudice resulted. Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994), cert. denied, Sanders v. Arkansas, 513 U.S. 1162, 115 S. Ct. 1126 (1995).

Although a violation occurred when the trial court answered questions from the jury without summoning it into open court, the state overcame the presumption that prejudice arose from the violation where the record showed that the proposed answers to the jury's questions were reduced to writing with agreement of defendant's counsel, and defendant's counsel did not argue on appeal that there was anything improper about their substance; further, the questions and answers were made part of the record and the trial judge did not enter the jury room when the written answers were delivered to the jurors. Clark v. State, 94 Ark. App. 5, 223 S.W.3d 66 (2006).

No one objected to a trial court's failure to answer a jury question regarding the meaning of concurrent and consecutive by bringing the jury back out, but rather debated and acquiesced in the trial court's written response. No abuse of discretion was shown in the trial court's written answer, and any error was not prejudicial. Frost v. State, 2010 Ark. App. 163 (2010).

—Open Court.

The trial judge's court's error in failing to comply with subsection (e) by visiting the jury room alone deprived defendant of a fundamental right which required protection, and as such, did not require a contemporaneous objection to preserve the issue for appeal. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (Ark. 1997).

The language in subsection (e) mandates that a jury which is in deliberation must be brought into open court before any information may be given to it, and noncompliance with this provision gives rise to a presumption of prejudice; if the judge instead visits the jury room, the State has the burden of rebutting that presumption. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (Ark. 1997).

—Prejudice Not Found.

Where the record reflected what occurred when the jury sent a note to the judge and the judge's response, and where the court gave notice of the jury's note to defense counsel before the jury returned, who made no motions or objections to the court's response at that time, the court's communication with the jury was not prejudicial to defendant; a mistrial was not required. Houston v. State, 41 Ark. App. 67, 848 S.W.2d 430 (1993).

State rebutted the presumption of prejudice from the trial court's violation of subsection (e) by showing the court's communication with the jury was limited to answering the jury's question, using language agreed to by the parties. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002).

Trial court violated subsection (c) of this section by communicating with the jury other than in open court by responding in writing to a jury question, but the state rebutted the presumption of prejudice because the record reflected the substance of the court's communication with the jury, defendant never objected to that substance, and the court never had any contact with the jury during deliberations. Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003), cert. denied, Anderson v. Arkansas, 540 U.S. 1050, 124 S. Ct. 832 (2003), appeal dismissed, — Ark. —, — S.W.3d —, 2006 Ark. LEXIS 109 (Jan. 12, 2006), dismissed, Anderson v. Norris, — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 10114 (E.D. Ark. Feb. 8, 2008).

—Waiver.

Strict compliance with this section was waived, where the attorneys went with the judge to the jury room, everything that happened was reported in the record, and there was no possibility of prejudice. Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986).

Where the record was silent as to what occurred during the replaying of a videotape, pursuant to a request under subsection (e) of this section, there was no waiver of the procedural requirements of subsection (e) by the defendant. Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993).

Papers.

The jury should not be permitted to take with them papers containing statements bearing on the case which were not read in evidence. Palmore v. State, 29 Ark. 248 (1874).

It is in the discretion of the court to determine whether the jury shall take the instructions with them when they retire. Hurley v. State, 29 Ark. 17 (1874); Benton v. State, 30 Ark. 328 (1875).

Evidence showed possession by jury of defendant's motion for continuance was improper but not reversible error, and it was not error, while that paper was in the possession of the jury, to refuse a request of the jury to permit them to take a testamentary letter allegedly written by defendant for purpose of comparing signatures on both papers. Phillips v. State, 62 Ark. 119, 34 S.W. 539, 1896 Ark. LEXIS 145 (1896).

The word “may” in subdivision (d)(3) indicates the statute was intended to be permissive and not mandatory, and, in the absence of any request by the appellant for the jury to receive the other exhibits which had been introduced in evidence, the trial court had the right to give the jury the one they requested to see, or the confession, after they had retired for deliberation. Nathan v. State, 235 Ark. 704, 361 S.W.2d 637 (1962).

Allowing the jury to have access to something which has not been admitted into evidence will not necessarily, without more, constitute an abuse of discretion. Dickerson Constr. Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979).

Sending a videotape to the jury after the jury requested a paper document did not violate subdivision (d)(3) of this section because subdivision (d)(3) did not limit exhibits that may be given to the jury during deliberations to papers and there was no danger of additional evidence being introduced by giving the exhibit during deliberations. Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006), cert. denied, 551 U.S. 1133, 127 S. Ct. 2973, 168 L. Ed. 2d 707 (2007).

Defendant's capital-murder conviction was appropriate because there was no error in the circuit court's decision to allow the jury to take a medical examiner's report with them into the jury room during deliberations, per subdivision (d)(3) of this section. The report was introduced into evidence during the trial, while defendant was present and represented by counsel. Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009).

Request for Information.

There was no violation of this section as the information played back to the jury had already been admitted into evidence and defendant did not suffer any prejudice by replaying the evidence. Jackson v. State, 2009 Ark. 336, 321 S.W.3d 260 (2009).

Retrial.

Holding second trial at the same term of first trial was not error. Hudspeth v. State, 194 Ark. 576, 108 S.W.2d 1085 (1937).

Court was authorized to retry a defendant at same term of court where there was a mistrial due to disagreement. Wimberly v. State, 214 Ark. 930, 218 S.W.2d 730 (1949).

Where the evidence presented in a prosecution for theft of property was sufficient, as a matter of law, to support a conviction, but a mistrial was declared after the jury reported that it was hopelessly deadlocked, it would not constitute double jeopardy to permit a retrial for the theft of property. Beard v. State, 277 Ark. 35, 639 S.W.2d 52 (1982).

A defendant's double jeopardy rights are not violated if he is required to stand trial following a mistrial due to a hung jury. Bell v. State, 6 Ark. App. 388, 644 S.W.2d 601 (1982)Criticized byLincoln v. State, 12 Ark. App. 46, 670 S.W.2d 819 (1984).

Strict Compliance.

Requirement that subsection (e) be strictly followed focuses not on the express reason for the jury to request the information, but the procedure by which the request is presented. McKinney v. State, 303 Ark. 257, 797 S.W.2d 415 (1990).

Although subsection (e) of this section does not expressly require a defendant's presence during the representation of evidence or instruction of law, when the trial court did not comply strictly with the procedural requirements of subsection (e), the failure to have the defendant present was reversible error. Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993).

Strict compliance with the procedural requirements of subsection (e) of this section may be waived. Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993).

The procedure set forth in this section is mandatory and must be strictly followed; the provisions of subsection (e) of this section are mandatory, in part, to ensure that the jury is not misinformed regarding the law as a consequence of the trial court's explaining the law to only one member of the jury. Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994), cert. denied, Sanders v. Arkansas, 513 U.S. 1162, 115 S. Ct. 1126 (1995).

There was compliance with this section in response to a note from the jury because the jury was returned to the courtroom and the communication with the jury was documented in the record. James v. State, 2010 Ark. 486, 372 S.W.3d 800 (2010), overruled in part, Kou Her v. State, 2015 Ark. 91, 457 S.W.3d 659 (2015).

Subsequent Instructions.

Subsection (e) is mandatory. Wacaster v. State, 172 Ark. 983, 291 S.W. 85 (1927); Durham v. State, 179 Ark. 507, 16 S.W.2d 991 (1929); Rollie v. State, 236 Ark. 853, 370 S.W.2d 188 (1963); Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), superseded by statute as stated in, Hawkins v. State, — S.W.2d —, 1997 Ark. App. LEXIS 123 (Ark. Ct. App. Feb. 26, 1997); Martin v. State, 254 Ark. 1065, 497 S.W.2d 268 (1973); Jackson v. State, 256 Ark. 406, 507 S.W.2d 705 (1974).

Where defendant agreed to judge's entering the jury room and giving the jury further instructions in violation of subsection (e), he waived his right to challenge the action unless it was prejudicial to his rights. Boone v. State, 230 Ark. 821, 327 S.W.2d 87 (1959).

Subsection (e) requires that the entire jury must be present before the court and counsel for the parties, or that notice be given to counsel, upon any proceeding affecting the rights of the defendant or the state. Rollie v. State, 236 Ark. 853, 370 S.W.2d 188 (1963).

Subsection (e) should be strictly construed. Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), superseded by statute as stated in, Hawkins v. State, — S.W.2d —, 1997 Ark. App. LEXIS 123 (Ark. Ct. App. Feb. 26, 1997); Martin v. State, 254 Ark. 1065, 497 S.W.2d 268 (1973); Jackson v. State, 256 Ark. 406, 507 S.W.2d 705 (1974).

Even though defendant did not raise the propriety of a state's appeal under Ark. R. App. P. Crim. 3(c), the appeal was dismissed where the state did not present a proper issue for appeal when it claimed that a trial court erred in granting a new trial because there was no issue that concerned the correct and uniform administration of justice where the trial court's ruling turned on whether a bailiff, in fact, answered a juror's question. State v. Short, 2009 Ark. 630, 361 S.W.3d 257 (2009).

—Bailiff.

Advice of bailiff to jury held prejudicial. Williams v. State, 264 Ark. 77, 568 S.W.2d 30 (1978).

Where the bailiff relayed a request from the jury in the jury room for further instructions, and the bailiff, accompanied by attorneys for both parties, returned to the jury room with the judge's response that no further advice could be given on the matter, and defendant did not show that the bailiff counseled the jury on a point of law or acted to prejudice the defendant's rights, the judge did violate subsection (e) by relaying communications to the jury through the bailiff, but in the absence of a showing of prejudice to the defendant, the error was harmless. Wilson v. State, 272 Ark. 361, 614 S.W.2d 663 (1981).

—Presence of Defendant.

Error of judge's rereading the instructions in the absence of the defendant's counsel was waived where defense was informed of what the court did before the jury retired but offered no objection. Wawak v. State, 170 Ark. 329, 279 S.W. 997 (1926).

Where court gives additional instruction to foreman of jury, in absence of defendant and his attorney, error is not cured by testimony of jurors that they had already reached a verdict of guilty before the instruction was given. Wacaster v. State, 172 Ark. 983, 291 S.W. 85 (1927).

It was reversible error for the court to charge individual jurors as to the law of the case in the absence of the accused and his counsel and after the jury had been deliberating for a considerable period of time without reaching a verdict. Hopkins v. State, 174 Ark. 391, 295 S.W. 361 (1927).

Defendant's right to be present was not prejudiced when his counsel waived that right prior to entry by both counsels and judge into the jury room at the jury's request. Jackson v. State, 256 Ark. 406, 507 S.W.2d 705 (1974).

Trial court committed reversible error in declining to answer the jury's questions about specific testimony, since the jury's inquiry and the court's ruling on the request were made during the absence of defense counsel. Golf v. State, 261 Ark. 885, 552 S.W.2d 236 (1977).

Remand to settle the record, pursuant to Ark. R. App. P. Crim. 4(a) and Ark. R. App. P. Civ. 6(e), was required where due to the lack of a verbatim record, it was impossible to determine whether defendant and his counsel were present when the circuit court ordered the jury notes marked as court's exhibits and received the jury notes into evidence. Likewise, the appellate court was unable to determine compliance or noncompliance with subsection (e) of this section. Terry v. State, 2019 Ark. 342 (2019).

—Sentence.

It was not error for the jury to ask the court if they could recommend a suspended sentence. Pendleton v. State, 211 Ark. 1054, 204 S.W.2d 559 (1947).

Judge's response to question concerning sentence held to be prejudicial. Bell v. State, 223 Ark. 304, 265 S.W.2d 709 (1954).

Where the jury, after some deliberation, returned to open court with a finding of guilt, but with the sentencing portion of the verdict form blank, the trial court did not abuse its discretion when in the presence of the entire jury, the defendant, and counsel for both the state and the defendant, it gave the jury additional instructions regarding its duty to specify the exact penalty to be imposed. Pruitt v. State, 8 Ark. App. 350, 652 S.W.2d 51 (1983).

—Single Juror.

If jurors are permitted to separate and one of them communicates with the court and the court gives an instruction, the presumption is that it would be prejudicial, but this error may be waived either by the defendant or his attorney. Smith v. State, 194 Ark. 264, 106 S.W.2d 1019, 1937 Ark. LEXIS 335 (1937).

Permitting one of the jurors to separate from the other eleven and go into the court room to talk to the court held not prejudicial. Smith v. State, 194 Ark. 264, 106 S.W.2d 1019, 1937 Ark. LEXIS 335 (1937).

Permitting one of the jurors to separate from the other eleven and go into courtroom to talk to court held to be prejudicial. Rollie v. State, 236 Ark. 853, 370 S.W.2d 188 (1963); Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), superseded by statute as stated in, Hawkins v. State, — S.W.2d —, 1997 Ark. App. LEXIS 123 (Ark. Ct. App. Feb. 26, 1997).

Cited: Jones v. State, 54 Ark. 371, 15 S.W. 1026, 1891 Ark. LEXIS 61 (1891); Johnson v. State, 60 Ark. 45, 28 S.W. 792 (1894); Rogers v. State, 60 Ark. 76, 29 S.W. 894 (1894); State v. McNamara, 60 Ark. 400, 30 S.W. 762 (1895); Carpenter v. State, 62 Ark. 286, 36 S.W. 900 (1896); Davis v. State, 63 Ark. 470, 39 S.W. 356 (1897); Caldwell v. State, 69 Ark. 322, 63 S.W. 59 (1901); Rayburn v. State, 69 Ark. 177, 63 S.W. 356 (1901); Byrd v. State, 69 Ark. 537, 64 S.W. 270 (1901); Bennett v. State, 70 Ark. 43, 66 S.W. 198 (1901); Ward v. State, 70 Ark. 204, 66 S.W. 926, 1902 Ark. LEXIS 38 (1902); Ritter v. State, 70 Ark. 472, 69 S.W. 262 (1902); Puckett v. State, 71 Ark. 62, 70 S.W. 1041 (1902); Walton v. State, 71 Ark. 398, 75 S.W. 1 (1903); Lee v. State, 72 Ark. 436, 81 S.W. 385 (1904); Cox v. State, 72 Ark. 544, 81 S.W. 1056 (1904); Keaton v. State, 73 Ark. 265, 83 S.W. 911 (1904); Mitchell v. State, 73 Ark. 291, 83 S.W. 1050 (1904); Meisenheimer v. State, 73 Ark. 407, 84 S.W. 494 (1904); Humphrey v. State, 74 Ark. 554, 86 S.W. 431 (1905); Beene v. State, 79 Ark. 460, 96 S.W. 151 (1906); Mabry v. State, 80 Ark. 345, 97 S.W. 285 (1906); Bell v. State, 81 Ark. 16, 98 S.W. 705 (1906); Stewart v. State, 88 Ark. 602, 115 S.W. 374 (1909); Dale v. State, 90 Ark. 579, 120 S.W. 389 (1909); Bailey v. State, 92 Ark. 216, 122 S.W. 497 (1909); Bowman v. State, 93 Ark. 168, 129 S.W. 80 (1909); Bennett v. State, 95 Ark. 100, 128 S.W. 851 (1910); Martin v. State, 97 Ark. 212, 133 S.W. 598 (1911); Hathcock v. State, 99 Ark. 65, 137 S.W. 551 (1911); Paul v. State, 99 Ark. 558, 139 S.W. 287 (1911); Caughron v. State, 99 Ark. 462, 139 S.W. 315 (1911); Gilchrist v. State, 100 Ark. 330, 140 S.W. 260 (1911); Fox v. State, 102 Ark. 393, 144 S.W. 516 (1912); Reed v. State, 102 Ark. 525, 145 S.W. 206, 1912 Ark. LEXIS 92 (1912); Monk v. State, 105 Ark. 12, 150 S.W. 133 (1912); West v. State, 105 Ark. 175, 150 S.W. 695 (1912); Gaylord v. State, 108 Ark. 408, 157 S.W. 1156 (1913); Scott v. State, 109 Ark. 391, 159 S.W. 1095 (1913); Woodland v. State, 110 Ark. 15, 160 S.W. 875 (1913); Coulter v. State, 110 Ark. 209, 161 S.W. 186 (1913); Barker v. State, 135 Ark. 404, 205 S.W. 805 (1918); Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978); Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981); Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984); Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987); Weaver v. State, 296 Ark. 152, 752 S.W.2d 750 (1988); National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990); Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993); National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990); Lowry v. State, 90 Ark. App. 333, 205 S.W.3d 830 (2005); Padilla v. Archer, 2011 Ark. App. 746, 387 S.W.3d 267 (2011).