2 Wash. 183 | Wash. | 1891
The opinion of the court was delivered by
— Defendant was convicted of murder in the first degree and is under sentence of death. Only one question is presented by the record. The case was given to the jury in the afternoon of March 25, 1890. It appears by affidavits in support of a motion for a new trial that the jury agreed upon their verdict some time during the night, and the same was signed, sealed up, and de
The state contends that the affidavits in support of the motion for a new trial are no part of the record, and, as no statement of facts or bill of exceptions was settled, that the question is not raised, and, if otherwise, that the point was waived by the consent to a sealed verdict, and that it was not error. Section 1, subd. 7 of the act commencing at page 7, Sess. Laws 1885-86, makes such affidavits a part of the record, and this act had not been repealed when this appeal was taken.
No precedent has been shown us, nor do we know of any, for allowing a sealed verdict in a capital case. We have no statute authorizing sealed verdicts, and such a separation of the jury was not authorized, at least according to the better authorities, at common.law. See Thomp. Trials, §§ 2551, 2552, and authorities there cited. It was conceded that, while the rule that the separation of the jury in a criminal case prior to the receipt of its verdict by the court was a misconduct which would entitle the defendant to a new trial was a good one when made, and could not be disregarded at that time without great danger of seriously prejudicing the substantial rights of the defendant, as then the jury could not render a written verdict in a criminal case, but must render it ore terms, and that, under such a provision of law, if a jury were permitted to separate prior to the rendering of the verdict, they might be subjected to influences dangerous to society and subversive of the rights of the defendant; yet it was argued with considerable force that the reasons therefor no longer apply, as our statute requires written verdicts, and that, when the verdict is once