| Ill. | Jun 15, 1867
delivered the opinion of the Court:
In this case plaintiff was indicted for stealing a mare and colt. A trial was subsequently had in the Circuit Court, resulting in a verdict of “guilty,” and that he be confined in the penitentiary for the term of four years. A motion was entered for a new trial, upon the ground, among others, that the jury, when trying the case, after hearing the evidence, retired to consider of their verdict, in charge of an officer who was not sworn in the mode prescribed by the statute. The motion was overruled and a judgment rendered on the verdict. The record discloses the fact, that the officer in whose charge the jury were placed while deliberating on their verdict was not sworn, and this is the only error relied upon for a reversal.
The 189th section of the Criminal Code, B. S. 186, declares, that, “ When the jury shall retire to consider of their verdict, in any criminal case, a constable or other officer shall be sworn or affirmed to attend the jury to some private and convenient place, and, to the best of his ability, keep them together without meat or drink (water excepted), unless by leave of the court, until they shall have agreed upon their verdict, nor suffer others to speak to them, and that when they shall have agreed upon their verdict he will return them into court.”
But it declares, that, in any eases of misdemeanor only, if the prosecutor for the people and the accused shall by himself or counsel agree, which agreement shall be entered upon the minutes of the court, they may dispense with the- attendance of an officer upon the jury.
The next section declares, that, if any officer sworn to attend upon a jury shall knowingly violate his oath or affirmation, or shall so negligently perform his duties that the jury shall separate without leave of the court, or obtain food or drink (except water), or if any person not belonging to the jury shall hold cpnversation with any of the jury, every person and officer so offending shall be punished for a contempt of court by fine or imprisonment, or both, in the discretion of the court.
These provisions show the great care and solicitude of the general assembly to secure to every person a fair and impartial trial; and it is eminently proper, as in many cases the accused is imprisoned, and it is not in his power to protect his rights from being prejudiced by undue influences. It should ever be the care of courts of justice to guard human life and liberty against being sacrificed by public prejudice or excitement.
The jury should be entirely free from all outside influences from the time they are impaneled until they return their verdict, and it is accepted and they discharged; and the legislature have determined that the provisions of this statute are necessary to accomplish the object. It is a provision easily complied with, and one member of the court, at least, has never in practice seen it dispensed with, except in cases of misdemeanor. The provisions of the statute are clear, explicit and peremptory. We know of no power short of its repeal, to dispense with this requirement. In the case of McIntyre v. The People, 38 Ill. 514" date_filed="1865-11-15" court="Ill." case_name="McIntyre v. People">38 Ill. 514, it was held to be error in a case of felony to omit to swear the officer having charge of the jury.
For this error the judgment of the court below must be reversed and the cause remanded.
Judgment reversed.