MR. JUSTICE JOHN C. HARRISON
delivered the opinion of the court.
Defendant appeals from his conviction of attempted second degree murder and the 25 year sentence imposed in the district court, Missoula County.
On October 20, 1972, a teen-age girl was riding her bicycle on the highway near Clearwater Junction. She was shot by a shotgun fired from a passing vehicle. Defendant Jerry Allen Herron was arrested the same day and was ultimately tried for four alternative crimes: 1) Attempted second degree murder. 2) First degree assault with intent to kill. 3) First degree assault with attempt to commit a felony. 4) Second degree assault.
The first trial on these charges was held in June 1973. The jury was given these two instructions, among others:
“Instruction No. 20. The crimes charged against the Defendant are all felony offenses. Therefore, all twelve of your number must agree in order to return a verdict of guilty or not guilty, and all twelve of your number must agree in order to decide any question necessary to be decided in arriving at a verdict on a crime.
“It is necessary that you consider the crime of attempted murder first, and find the defendant either guilty or not guilty of that charge.
“In the event you find the defendant guilty of attempted [195] murder you need go no further as you will have reached a verdict in this case.
“In the event you find the defendant not guilty of attempted murder, then you must consider the crime of Assault in the First Degree with intent to kill as embodied in alternative Count II of the Information. You must find the defendant either guilty or not guilty of Assault in the First Degree with intent to kill. In the event you find the defendant guilty of that charge, you have reached a verdict and need go no further.
“In the event you find the defendant not guilty of Assault in the First Degree with intent to kill, you must consider the alternative County Number III of the Information which is Assault in the First Degree with intent to commit a felony. In the event you find the defendant guilty of that charge, you have reached a verdict and need go no further.
“In the event you find the defendant not guilty of Assault in the First Degree under both Counts II and III, you must then consider the lesser included offense of Assault in the Second Degree. You must find the Defendant guilty or not guilty of this charge, and when you do so, you have reached a verdict and need not proceed further.”
“Instruction No. 24. When you retire to the jury room, you shall select one of your number to act as foreman, who will preside over your deliberations. In order to reach a verdict, all twelve jurors must agree to the decision. As soon as you have agreed upon a verdict, you shall have it dated and signed by your foreman and then shall return with it to this room.”
The jury was provided with eight forms of verdict. The jury deliberated one entire night, returned to court at 5:40 a.m. and announced its failure to reach a verdict, and was discharged.
Three days later a member of the jury telephoned defendant’s attorney for the stated purpose of informing him what had actually occurred during the night of jury deliberations.
According to the affidavit of this juror, which was filed by [196] defendant’s attorney, the jury had actually voted unanimously to acquit defendant of attampted second degree murder, first degree assault with intent to kill, and first degree assault with intent to commit a felony. The jury was deadlocked only on defendant’s guilt or innocence of second degree assault.
Defendant’s counsel contacted the jury foreman by phone who substantially corroborated these events and further explained the reason why no verdict forms had been signed to reflect the verdict. According to the foreman’s affidavit, the jury was confused by two instructions, No. 20 and No. 24, heretofore quoted. The jurors asked the bailiff to convey a question to the presiding judge as to whether they should sign the first verdict form before proceeding to the next charge. No record exists concerning what the bailiff asked the judge or what the judge replied to the bailiff, as no court reporter was in attendance and no attempt was made to notify either counsel of the jurors’ confusion. The affidavit indicated the bailiff told the jury foreman that the jury was to arrive at only one verdict in the case and therefore should sign only one form.
These events were corroborated by the affidavits of the other jurors. Their version of events was never questioned by the state in its brief or oral argument on appeal.
The second trial of defendant was held in December 1973. Defendant was tried on the same charges, with one exception; the charge of first degree assault with intent to kill was dismissed. The jury was unable to reach a verdict on the remaining three charges at the second trial.
A third trial was held in June 1974, on the same charges as in the second trial. Defendant was convicted of attempted second degree murder and sentenced to 25 years imprisonment in the state prison, where he is presently incarcerated.
At the second and third trials defendant maintained the district court had no jurisdiction to try him again on charges of attempted second degree murder or first degree assault with intent to commit a felony, because he had been acquitted of both [197] charges at the first trial. His claim is based on the double jeopardy provision of the Federal and State Constitutions. They provide:
Amendment 5, United States Constitution:
“* * .* nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * *
Article II, Section 25, 1972 Montana Constitution:
“* * * No person shall be again put in jeopardy for the same offense previously tried in any jurisdiction.”
The double jeopardy provision of the United States Constitution prohibits being twice placed on trial, as well as twice punished for the same offense. It does not prohibit retrial for the same offense if the first trial results in a hung jury. We find no reason to construe the double jeopardy provision of Montana’s Constitution otherwise.
The ultimate question on appeal is whether the record in this case discloses an acquittal or a hung jury at the first trial on the charge of attempted murder. This issue must stand or fall on the answer to these questions:
1. The effect of the oral communication between the jury and the court in the absence of counsel?
2. Whether juror affidavits can be used to supply proof of actual events that occurred during jury deliberation?
In view of the fact this defendant was tried three times before conviction and defense counsel raised the issues we are about to discuss at the second and third trials, this Court is at a loss to understand why, upon discovering the facts after the first trial, he did not apply to this Court for a writ of supervisory control. His failure to do so caused the expense of two needless trials, along with unnecessary trauma to his client.
The oral communication between the jury and the court via the bailiff clearly violates section 95-1913(d), R.C.M.1947:
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MR. JUSTICE JOHN C. HARRISON
delivered the opinion of the court.
Defendant appeals from his conviction of attempted second degree murder and the 25 year sentence imposed in the district court, Missoula County.
On October 20, 1972, a teen-age girl was riding her bicycle on the highway near Clearwater Junction. She was shot by a shotgun fired from a passing vehicle. Defendant Jerry Allen Herron was arrested the same day and was ultimately tried for four alternative crimes: 1) Attempted second degree murder. 2) First degree assault with intent to kill. 3) First degree assault with attempt to commit a felony. 4) Second degree assault.
The first trial on these charges was held in June 1973. The jury was given these two instructions, among others:
“Instruction No. 20. The crimes charged against the Defendant are all felony offenses. Therefore, all twelve of your number must agree in order to return a verdict of guilty or not guilty, and all twelve of your number must agree in order to decide any question necessary to be decided in arriving at a verdict on a crime.
“It is necessary that you consider the crime of attempted murder first, and find the defendant either guilty or not guilty of that charge.
“In the event you find the defendant guilty of attempted [195] murder you need go no further as you will have reached a verdict in this case.
“In the event you find the defendant not guilty of attempted murder, then you must consider the crime of Assault in the First Degree with intent to kill as embodied in alternative Count II of the Information. You must find the defendant either guilty or not guilty of Assault in the First Degree with intent to kill. In the event you find the defendant guilty of that charge, you have reached a verdict and need go no further.
“In the event you find the defendant not guilty of Assault in the First Degree with intent to kill, you must consider the alternative County Number III of the Information which is Assault in the First Degree with intent to commit a felony. In the event you find the defendant guilty of that charge, you have reached a verdict and need go no further.
“In the event you find the defendant not guilty of Assault in the First Degree under both Counts II and III, you must then consider the lesser included offense of Assault in the Second Degree. You must find the Defendant guilty or not guilty of this charge, and when you do so, you have reached a verdict and need not proceed further.”
“Instruction No. 24. When you retire to the jury room, you shall select one of your number to act as foreman, who will preside over your deliberations. In order to reach a verdict, all twelve jurors must agree to the decision. As soon as you have agreed upon a verdict, you shall have it dated and signed by your foreman and then shall return with it to this room.”
The jury was provided with eight forms of verdict. The jury deliberated one entire night, returned to court at 5:40 a.m. and announced its failure to reach a verdict, and was discharged.
Three days later a member of the jury telephoned defendant’s attorney for the stated purpose of informing him what had actually occurred during the night of jury deliberations.
According to the affidavit of this juror, which was filed by [196] defendant’s attorney, the jury had actually voted unanimously to acquit defendant of attampted second degree murder, first degree assault with intent to kill, and first degree assault with intent to commit a felony. The jury was deadlocked only on defendant’s guilt or innocence of second degree assault.
Defendant’s counsel contacted the jury foreman by phone who substantially corroborated these events and further explained the reason why no verdict forms had been signed to reflect the verdict. According to the foreman’s affidavit, the jury was confused by two instructions, No. 20 and No. 24, heretofore quoted. The jurors asked the bailiff to convey a question to the presiding judge as to whether they should sign the first verdict form before proceeding to the next charge. No record exists concerning what the bailiff asked the judge or what the judge replied to the bailiff, as no court reporter was in attendance and no attempt was made to notify either counsel of the jurors’ confusion. The affidavit indicated the bailiff told the jury foreman that the jury was to arrive at only one verdict in the case and therefore should sign only one form.
These events were corroborated by the affidavits of the other jurors. Their version of events was never questioned by the state in its brief or oral argument on appeal.
The second trial of defendant was held in December 1973. Defendant was tried on the same charges, with one exception; the charge of first degree assault with intent to kill was dismissed. The jury was unable to reach a verdict on the remaining three charges at the second trial.
A third trial was held in June 1974, on the same charges as in the second trial. Defendant was convicted of attempted second degree murder and sentenced to 25 years imprisonment in the state prison, where he is presently incarcerated.
At the second and third trials defendant maintained the district court had no jurisdiction to try him again on charges of attempted second degree murder or first degree assault with intent to commit a felony, because he had been acquitted of both [197] charges at the first trial. His claim is based on the double jeopardy provision of the Federal and State Constitutions. They provide:
Amendment 5, United States Constitution:
“* * .* nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * *
Article II, Section 25, 1972 Montana Constitution:
“* * * No person shall be again put in jeopardy for the same offense previously tried in any jurisdiction.”
The double jeopardy provision of the United States Constitution prohibits being twice placed on trial, as well as twice punished for the same offense. It does not prohibit retrial for the same offense if the first trial results in a hung jury. We find no reason to construe the double jeopardy provision of Montana’s Constitution otherwise.
The ultimate question on appeal is whether the record in this case discloses an acquittal or a hung jury at the first trial on the charge of attempted murder. This issue must stand or fall on the answer to these questions:
1. The effect of the oral communication between the jury and the court in the absence of counsel?
2. Whether juror affidavits can be used to supply proof of actual events that occurred during jury deliberation?
In view of the fact this defendant was tried three times before conviction and defense counsel raised the issues we are about to discuss at the second and third trials, this Court is at a loss to understand why, upon discovering the facts after the first trial, he did not apply to this Court for a writ of supervisory control. His failure to do so caused the expense of two needless trials, along with unnecessary trauma to his client.
The oral communication between the jury and the court via the bailiff clearly violates section 95-1913(d), R.C.M.1947:
“(d) After Retirement, May Return into Court for Information. After the jury has retired for deliberation, if there be any [198] disagreement among them as to the testimony, or if they desire to be informed on any point of law arising in the cause, they must require the officer to conduct them into court. Upon being brought into court, the information requested may be given in the discretion of the court; if such information is given it must be given in the presence of the county attorney and the defendant and his counsel.”
It also violates the proscription against oral jury instruction. State v. Beesskove, 34 Mont. 41, 85 P. 376; State v. Wakely, 43 Mont. 427, 437, 117 P. 95; State v. Asher, 63 Mont. 302, 306, 206 P. 1091; State v. Gies, 77 Mont. 62, 64, 249 P. 573.
As a general rule additional instructions to the jury must comply with the law and failure to follow the law constitutes reversible error. The vice of the situation here is that defendant’s attorney was not notified nor present and had no way to protect his client from the jury’s confusion. This is patently prejudicial. Had the jury convicted defendant of the charge of attempted murder at the first trial, the verdict would have had to be set aside because of reversible error, chargeable to the state.
Can juror affidavits be used to prove what occurred during jury deliberations? The district court, prior to the second trial, held that they could not on the ground that juror affidavits cannot be used to impeach jury verdicts in Montana. This holding is error.
In the instant case the juror affidavits were not used to impeach the jury verdict, because the jury did not return a verdict of any kind. The affidavit was used to show that because of outside influences on the jury during its deliberations, a verdict of acquittal on three of the charges was actually rendered by the jury but was not returned to the court due to the confusion over jury instructions. The state does not deny this. Justice compels the use of juror affidavits to prove what actually occurred.
For the foregoing reasons, the judgment of conviction of at[199] tempted second degree murder is vacated. The cause is remanded to the district court for retrial on the remaining charge of second degree assault.
MR. JUSTICES HASWELL and DALY concur.