Appellant J. V. Spaugh, together with appellant Harry M. Curry and eleven others, was indicted on a charge of conspiracy to make, forge, and counterfeit certain orders and writings, to wit, United States Liberty Loan bonds. This indictment, for convenience, will be hereafter referred to as the “conspiracy indictment.” Six other indictments were returned against several groups of defendants named in the conspiracy indictment. The indictments contained various counts charging different groups of defendants therein named with the substantive offenses of forging Liberty bonds and uttering the same, but in none of which was appellant Spaugh named as defendant. The conspiracy indictment was consolidated for- trial with the six other indictments in which appellant Spaugh was not mentioned.

This action of the court was objected to by appellant Spaugh and exception saved and the ruling made assigned as error. As *721 appellant Curry is not concerned with this contention, and as the judgment of conviction must be reversed on other grounds, and because we have before us none of the evidence adduced at the trial, we refrain from expressing any opinion on this assignment of error.

After the jury had been deliberating for forty-six hours, the court recalled the jury. Thereupon the following took place:

After the court had ascertained as to which indictments the jury had finished balloting and those in which the jury had not agreed, the court proceeded to instruct the jury as follows:

Defendants J. V. Spaugh and Harry M. Curry duly excepted to the following portion of the foregoing instruction: “And, on the other hand, if much the larger number of your panel are for a conviction, a dissenting juror should likewise consider whether a doubt in his own mind is a reasonable one, which makes no impression upon the minds of so many men, equally honest, equally intelligent with himself, who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath.”

Thereafter, and while the jury were still deliberating as to the guilt or innocence of the defendants Harry M. Curry and J. V. Spaugh and before the jury had reached a verdict as to said defendants, the court made .the following inquiry of the jury :

The defendants J. V. Spaugh and Harry M. Curry thereupon obj ected to' the said inquiry of the court, in which the court asked the jury to indicate the numeri■cal division of the jury and how the jury was divided on the balloting. Said objection was overruled, and defendants J.-V. Spaugh and Harry M. Curry thereupon duly excepted to said ruling.

The court then made further inquiry of the jury as follows: “The Court: Now, turning to case No. 11,752, may we inquire as to any balloting that still remains to be done, without indicating as to which defendant, but as to any balloting that still remains to be done — the numerical division with respect to such ballot.”

The defendants J. V. Spaugh'and Harry M. Curry thereupon objected to the said inquiry of the court, in which #the court asked the jury to indicate the numerical division of the jury and how'the jury was divided on the balloting. Said objection was overruled, and defendants J. V. Spaugh and Harry M. Curry thereupon duly excepted to said ruling.

“Foreman Person: In the case of one defendant, the ballot is ten to two; in the case of another defendant it is eleven to one.

“The Court: Coming now to case No. 11,757, will you tell us the numerical division as to count 1 ?