45 N.H. 408 | N.H. | 1864
The affidavit of Spaulding tends to show conduct of the jury that was in most gross violation of them duty; and, although the testimony of the jurors in exculpation of themselves would have been competent, Tenney v. Evans, 18 N. H. 464, yet no attempt has been made to deny or explain the statements in the affidavit. The facts stated by Spaulding, unexplained as they are, warrant us in concluding that the jury agreed to fix the damages by each marking a sum and then dividing the aggregate of the highest and the lowest sums marked by two for their verdict; that this was done and the sum of $5.21 thus obtained was,according to the arrangement and without any further deliberation, set down and returned as the damages. However much we maybe surprised at the circumstances under which these facts come before us, and however manifest may be the impropriety of the officer’s presence in the jury-room during the deliberations of the jury, yet, as the facts aye in evidence, we cannot disregard them because of the circumstances under which they have been shown in this case, State v. Flynn, 36 N. H. 70, and a verdict thus made up cannot be sustained. Dorr v. Fenno, 12 Pick. 527; Harvey v. Rickett, 15 Johns. 87; Smith v. Cheetham, 3 Caines, 57; Tyler v. Stevens, 4 N. H. 116. As the verdict must be set aside, it is unnecessary to inquire whether the defendant’s objection on account of the mode in which the jury arrived at •their verdict in his favor on another part of the case, is open to him. It, however, seems to us proper to remark, that, in finally determining the question upon that branch of the case, the jury seem to have acted in utter disregard of the obligations of their oaths. The verdict must be set aside and a new trial granted.
