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re te ik te mts nina — or 42 . Sheppard v. Mazxwell with them about it. We must assume they followed the court’s instructions. No complaint is made that they disregarded these instructions every night for some seven weeks that they were allowed to go home at the close of each day’s session of the trial. It is difficult to visualize a juror who will follow a court’s instruction during the many hours he spends each evening and week end with his family and then delib- erately disregard that instruction in.a few brief mo- ments he speaks to a member of his«family on the telephone in the presence of a bailiff. “The law of Ohio is that no judgment of conviction shall be reversed in any court for any cause unless it appears affirmatively from the record that the defend- ant was prejudiced thereby or was prevented from having a fair trial. Section 2945.83, Revised Code. . There is no such affirmative showing of prejudice here, and this court will not presume a prejudice as a matter of law from the fact that some of the jurors made telephone calls to members of their immediate families.” The foregoing is not only the law of Ohio on this question but, in our view, Is just plain common sense. Here again the District Judge placed reliance on cases the facts of which disclose their lack of resemblance to the case before him and us. State v. Adams, 141 Ohio St. 428, 48 NE (2) 861, 146 ALR 509 (1948) ; Emmert v. State, 127 Ohio St. 235, 187 NE 862, 90 ALR 242 (1933); and Mattox vy. United States, 146 US. 140, 36 L. Ed. 917 (1892). In State y, Adams, a bailiff who had been told by the jury that it could not agree said to them, “you can’t do that. You must reach. a decision if you have to stay here for three months.” In-Emmert v. State, the officer in charge of the jury remarked to certain jurors, “My God, you are all wet. Judge Stahl expects you to return a verdict of guilty and if you don’t it will be just too bad.” Aside from this obvious mappositeness, these Ohio cases were found not controlling of this case by the Ohio Court. Mattox v. United States No. 16077 to ease the jurors’ minds as to personal matters and would make them better, more conscientious jurors. Time after time, the members of this jury were in- structed by the court not to communicate with anyone concerning this case or. permit anyone to communicate No. 16077 Sheppard v. Maxwell 43 involved direct review of a federal trial. Because the dissenting opinion frequently cites Mattox to support its conclusions, we have set out in the margin Chief Justice Fuller’s recital of the facts in Mattox ** because it dis- 12“In support of his motion for new trial the defendant offered the affidavits of two of the jurors that the bailiff who had charge of the jury in the case after the cause had been heard and submitted, ‘and while they were deliberating of their verdict,’ ‘in the presence and hearing of the jurors or a part of them, speaking of the case, said: “After you fellows get through with this case it will be tried again down there, Thompson has poison in a bottle that them fellows tried to give him. And at another time, in the presence and hearing of said jury or a part of them, referring to the defendant, Clyde Mattox, said: “This is the third fellow he has killed.”’ The affidavit of another juror to the same effect in respect of the remark of the bailiff as to Thompson was also offered, and in addition, the affidavits of eight of the jurors, includin the three just mentioned, ‘that after said cause had been submitte to the jury, and while the jury were deliberating of their verdict and before they had agreed upon a verdict in the case, a certain newspaper printed and published in the city of Wichita, Kansas, known as The Wichita Daily Eagle, of the date of Thursday morning, October 8, 1891, was introduced into the jury room; that said paper contained a comment upon the case under consideration by said jury, and that said comment upon said case so under consideration by said jury, was read to the jury in their presence and hearing; that the comment so read to said Jury is found upon the fifth page of said paper, and in the third column of said page, and is as follows: “*6The Mattox case—The jury retired at noon yesterday and is still out. “©The destiny of Clyde Mattox is now is [sic] the hands of the twelve citizens of Kansas composing the jury in this ease. If he is not found guilty of murder he will be a lucky man, for the evidence against him was very strong, or at least appeared to be to an outsider. The case was given to the jury at noon yesterday, and it was expected that their deliberations would not last an hour before they would return a verdict. The hour passed and nine more of them with it, and still a verdict was not reached by 10:30 last night, when the jury adjourned and went to their rooms at the Carey. Col. Johnson, of Oklahoma City, defended him, and made an excellent speech in his behalf to the jury. Mr. Ady also made a fine speech and one that was full of argument and replete with the details of the crime committed as gathered from the statements of witnesses. The lawyers who were present and the court officers also agree that it was one of the best and most logical speeches Mr. Ady ever made in this court. It was so strong that the friends of Mattox gave up all hope of any result but conviction. Judge Riner’s instructions to the jury were very clear and impartial, and required nearly half an hour for him to read them. When the jury filed out, Mattox seemed to be the most unconcerned man in the room. His mother was very pale and her face indicated that she had but very little hope. She is certainly deserving of a good deal of credit for she has stuck by her son, as only a mother can, through all his trials and difficulties, and’ this is not the first one by any means, for Clyde has been tried for his life onca before. He is a youthful looking man of light build, a beardless face, and a nervous disposition. The crime for which he has just been tried is the killing of a colored man in Oklahoma City over two years ago. Nobody saw him do the killing and the evidence against him is purely circum- stantial, but very strong, it is claimed, by those who heard all the testi- mony.”’” 146 U.S. 142-144, 36 L. Ed. 918-19.