129 Neb. 180 | Neb. | 1935
The defendant was prosecuted in Douglas county for-aiding, abetting, encouraging, and contributing to the-delinquency of June Campbell, a delinquent child, 14 years-of age. The jury returned a verdict of guilty, and she-was sentenced to four months in the county jail, and, in. addition, required to pay a fine of $100 and costs.
The motion for a new trial is based upon several.
The other affidavit is signed by Ole A. Lerdahl, which sets out that he had been in favor of acquitting the defendant, and that the bailiff in charge of the jury at about 1 p. m. on Friday, May 18, 1934, came into the jury room and said to the affiant, in the presence of all the jurors, “You’re not going to hold them back alone, are you?” and then said, “The judge will be here about 2 o’clock and then will be gone all afternoon.” The state neither offered nor introduced any evidence in opposition thereto.
Let us consider a few of the cases involving such matters. In Williams v. Chicago & N. W. R. Co., 11 S. Dak. 463, there was no fire in the courthouse except in the jury room, and between 2 and 3 o’clock in the morning a juror invited the bailiff to come into their room and get warm, as the night was bitterly cold. The bailiff came in and laid down on the floor near the door. He did not talk to any juror, nor were any of the jurors near him. No juror communicated with him by word, sign, letter, or otherwise, while he was in the room, nor did the jury take a vote while he was in the room. When he got warm he went out and locked the door behind him. It was held that nothing in the action or conduct of the bailiff or the jury warranted a new trial.
In Hampton v. Van Nest’s Estate, 196 Mich. 404, during
The jury are to be protected from hearing prejudicial conversations in public places while deliberating. In Curry v. Willson & Sons, 301 Pa. St. 467, it appeared that, while jurors were eating in a restaurant, attorneys not engaged in the trial of the case were discussing the probable size of the verdict. However, upon affidavit that the jurors did not hear the discussion by the attorneys, the motion for a new trial was overruled.
Even the judge himself is not supposed to hold private conversation with the jury. “Trial judge’s conversation with jurors while deliberating, in absence of respective counsel, held prejudicial error.” Tawzer v. McAdam, 7 Pac. (2d) 516 (134 Kan. 596).
In a prosecution for receiving stolen property, the jury had some trouble with the subtleties of the law, and after deliberating many hours signified a desire for further information. The jury were brought into the jury box, and a conversation took place between the jury and the court in the presence of the attorneys. No objection was made to this proceeding, but after the jury had retired the trial judge went to the jury room, put his head in the door, and held a conversation with them. The supreme court of Kansas said: “The conduct exhibited was, however, highly improper. Throughout the proceeding in a criminal case the trial judge’s place is on the bench. The jury room is a place of seclusion and privacy for members of the jury
In Nebraska we have a statute which clearly covers this case. Section 20-1109, Comp. St. 1929, provides, among other things, that, when the case is finally submitted to the jury and they retire to deliberate, they must be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict or are discharged by the court, and further, “The officer having them under his charge shall not suffer any communication to be made to them, or make any himself, except to ask them if they have agreed upon their verdict, unless by order of the court, and he shall not, before the verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon.”
There are always to be found officious bailiffs, who often carry messages back and forth to the members of the jury, or lecture the jury as to their duty, and who bring about mistrials by their conduct. In Olsen v. State, 113 Neb. 69, we have such a case, where one such bailiff volunteered the information to the jurors, just before closing the room for the jury to begin their deliberations, that the wife of one of the jurors, naming him, would spend the night at the home of the prosecuting attorney. The trial judge had just administered the oath to this bailiff as to his duties as founded upon the above section of our statute, and, without the knowledge of the judge, this bailiff volunteered this gossip to the jury, which required this court to reverse a conviction in a felony case which had taken days to try.
We are unwilling to lend encouragement to the lax conduct of a bailiff which, if tolerated, would undermine the purity and efficiency of our jury system. “The verdict of a jury * * * should represent the concurring judgment,
The judgment and sentence are set aside, and a new trial is ordered.
Reversed.