People v. Douglass, 4 Cow. 26

People v. Douglass

4 Cow. 26 | N.Y. Sup. Ct. | 1825

Lead Opinion

Woodworth, J.

in delivering, the opinion of the Courts spoke nearly as-follows: The question whether a new tri *33al is to be granted to the prisoner, will depend on the facts disclosed by the affidavits, as to the misconduct of the two j urors, Lamb and S wartwout. It is alleged, that they separated from their fellows, while the jury were out under the charge of the constables, and ate, drank spiritous liquor, and conversed on the subject of the trial. Anciently the utmost rigor and strictness were observed in the manner of keeping the jury; and when once charged with a cause, they never could be discharged till they had agreed on their verdict; but the practice has been much relaxed in modern times, in both these particulars. In Parke’s case, (2 Roll’s Rep; 85,) at nisiprius, a juror was challenged and withdrawn, and afterwards went out, mingled with the jury, and stayed with them above half an hour; but the Court held,that this should not set aside the verdict, unless it was shown that the jury had new evidence given after they went out of Court; but that it was a misdemeanor in him who was challenged, and punishable.

On looking into the books, we do not find that mere separation of the jury has ever been held a sufficient cause for setting aside a verdict, either in a civil or criminal cause, if we except, perhapsj the case of the Commonwealth v. M'Caul, (Virg. Cas. 271.) The question has been learnedly examined in several cases,and especially in that of The King v. Wolf others, (1 Chit. Rep. 401.) That appears to be a case which excited very great interest, and led to the utmost research of the counsel, and the Court of Ring’s Bench. It was ably argued, and all the Judges delivered their opinions seriatim. It was the case of a trial for a conspiracy, which commenced on the morning of the 20th of April, 1819, at Guildhall, before Abbot, Ch. J. and continued till 11 at night, when the evidence being closed on the part of the prosecution, but the case being unfinished, the Court informed the jury that they might retire to their families; but especially warned them not to have any communication with any person, concerning the matter in issue. They retired accordingly, and the next morning assembled, heard the case through, and at a late hour in the afternoon found the defendants guilty. No abuse being pretended, the naked ques*34tion was presented, whether a separation, per se, was a sufficient ground for avoiding the verdict; and it was held, after great deliberation, that it was not. The Court admitted the ancient strictness which prevailed in this respect, but said it had been much relaxed ; that it frequently became necessary, from the very great length of modern trials, that the jury should separate; that from the mere fatigue and exhaustion which jurors frequently undergo, it is a course not only essential to the rights of the public, but of mercy to defendants, whose causes must be unsafe in the hands of a jury entirely shut out from comfortable refreshment and relaxation, perhaps for several days. Best, J. in particular, speaks of the same rule being applicable to trials for the highest criminal offences. “ Suppose (says he) in the case of a trial for capital felony, some of the jury, by accident, get out of the box, and the prisoner, in the result of the trial, is acquitted; the consequence of the argument for the prisoners would be a mis-trial, and the man must be put on his trial again.” (1 Chit. Rep. 426.) What the King’s Bench would have said of a capital case, it is true, does not directly appear : because the case under consideration was one of a misdemeanor. But the reasoning of the Judges is equally applicable to both cases ; and we think that the mere fact of separation, unaccompanied with abuse, should not avoid the verdict, even in a capital case. A decision was cited to this effect from Connecticut; but we do not rely upon that, because the latitude allowed to jurors, in all respects, is there very great, and their Courts do not profess to be guided in this practice by the rules of the common law. The decisions in this country are not uniform. Several cases were cited on the argument from the New Jersey Reports, in which the separation of the jury was held irregular, but not sufficient to vitiate the verdict. These cases were not capital; but they go strongly to support the general principle. State v. Carstaphen, (2 Hayw. 238,) was a ciiminal case, and the same doctrine was holden. The case of the Commonwealth v. M’Caul, (Virg. Cas. 271,) does, however, go the length of saying, that the Court should guard against the possibility of abuse, by setting aside the verdict, *35if any of the jury depart from the control of the officer; but the Court did not profess to go upon any adjudged case in England; and we think the English cases are founded on the better reason. These are uniform, that though the jury separate, if there be no farther abuse, this shall not vitiate the verdict though it would be a contempt of the Court, if contrary to their instructions, and would be punishable as such.

In the case at bar, the jury retired before the trial had closed, under the care of two sworn constables ; and it is alleged, on "the part of the prisoner, that two of them not only separated from their fellows, but also drank whiskey, and conversed freely on the subject of the trial.

Three of the witnesses, through whom it is sought to fix on Lamb and Swartwout the charge of having drank whiskey and conversed on the matter in issue, having deliberately contradicted what they had sworn as to conversations, I think they should not receive credit even for what they say in relation to the drinking of these jurors. Their testimony properly comes within the maxim, falsus in uno, falsus in omnibus. Besides, one of them is shown to have been a notorious drunkard himself. He was in a state of intoxication during most of the session, and at the very time when he pretends to have heard and seen things implicating the two jurors. But the case is very different with Wheeler, who thinks he saw both Swartwout and Lamb drink some kind of spiritous liquor while out. This witness stands unimpeached; and the exculpatory affidavit of Swartwout, one of the jurors, is not explicit. He confines himself to a literal denial that he drank whiskey ; but Wheeler’s affidavit that he drank some kind of spirits, may still be correct.

Admitting, however, that the weight of evidence is against drinking—admitting that Wheeler’s and Swartwout’s affidavits cannot be reconciled—I think that in a case of life and death, the question upon the misbehavior of the jury should be beyond all doubt. Clearly, we should disregard the fact of eating, as forming any ground for setting aside the verdict; for though this might be a contempt of Court, being without their leave, yet an opportunity to take *36reasonable refreshments would always be granted, at a pro. per season. an¿ the circumstance of their being obtained somewhat irregularly, could not prejudice the prisoner. But here the doubt is, whether there was not farther abuse, in drinking spiritous liquors. This should not be tolerated in any shape, in the jury, during the progress of the trial; and we have uniformly held, that it vitiated the verdict in a civil cause, even where the liquor was given to the jury by consent. It will not do to weigh and examine the quantity which may have .been taken by the jury, nor the effect produced. In this case, it is not at all probable' that either of these jurors was, in the least, under the influence of strong drink ; but being doubtful whether they may not have drank something, we ought not, especially in a case of life and death, to sustain the verdict.

We cannot lay down any general rule for all cases like this which may arise. They will be attended with different circumstances. We do mean to be understood, however, as saying, that the mere separation of the jury, without any farther abuse, is not sufficient ground for setting aside a verdict; though it may deserve severe reprehension from the Court. In this case, wé think there is not a total failure of proof that the two jurors drank, though perhaps the balance of evidence may be against it.

Concurrence Opinion

Sutherland, J.

I concur in the result of the opinion delivered. I do not think the evidence before us is to be weighed and balanced with the same nicety as would be proper in a civil cause. All we have to do, in a case like the present, is, to inquire whether, in the conduct of the jury, that prudence and circumspection has been observed, which becomes them on so solemn an occasion as that which commits to their hands the life of a fellow being. There is no difference among us, that the mere fact of drinking spiritous liquor is enough to set aside the verdict. It will never do to hold a rule short of this: that where any one of the jury, in the course of the trial, drinks spiritous liquor, we will set aside the verdict, on this ground alone. In this case, I think there is little doubt that two of the jurors did drink, -though probably not in such quantities as in the least to disqualify them for a *37discharge of their duty. Here are four witnesses who concur in the fact that the two jurors drank ; and none of them have ever contradicted themselves, as to this fact, in any subsequent conversation, though three of them have given statements at war with their affidavits, in other respects. Swartwout contents himself with denying that he drank whiskey ; but does not, and indeed could not in truth, deny this of his co-juror, Lamb; though he might, if true, have done so with the same propriety that he denies Lamb’s holding conversation with any one on the subject of the trial. As to the latter, he could not speak with absolute certainty. At one time he was six rods from Lamb, when he might have conversed unheard by Swartwout: though if during the time of their separation he had his eye upon Lamb, he might have negated the fact of his drinking. He has not even gone so far as to say that he did not see Lamb drink. Though three of these witnesses have, subsequent to their making affidavits in behalf of the prisoner, contradicted themselves in relation to some of the material facts to which they swore, I do not think that, on this summary application addressed to the Court, we are warranted, in utterly rejecting their testimony, upon the maxim/aZsws in uno,falsus in omnibus. It is enough that we are brought to entertain a reasonable doubt upon the facts in question. It is not like the case of a civil trial, or indeed of any trial, where witnesses may be compelled to attend and undergo a cross-examination. But, on the whole, I think the evidence conclusive that the jurors whose conduct is in question, or one of them, did drink spiritous liquor of some kind.

As remarked by Mr. Justice Woodworth, it is impossible to lay down any general rule, which shall guide in all the various circumstances with which cases like this may be attended; yet I have no hesitation in saying, that where the separation of a jury is contrary to their duty towards the Court, and there is the slightest suspicion of abuse, their verdict should be set aside. The separation here was unusual and unwarrantable. It was perfectly proper for this jury to go out under the care of the constables, and a jury *38cannot, in such a case, be always immediately under the eyes of the officers. The purpose is plain for which they were suffered to leave the box. It was not for the purpose of going to their meals; and they received from the Court the usual strict charge as to their demeanor. Yet they departed entirely from the care of the officer, and the instructions they had. received, and went a distance of 30 rods, to their lodgings. This was not necessary. It was improper; .and I think a separation under these circumstances, in itself, enters with great weight into the cause for granting a new trial, in which we are unanimous.

Concurrence Opinion

Savage, Ch. J.

I concur in the opinion that a new trial should be granted; and, without recapitulating the evidence, would merely observe, that, in a civil suit, at this day, it is perfectly clear, that a separation of the jury, without, and even contrary to the direction of the Court, would not, of itself, warrant us in setting aside their verdict. The ancient strictness, in this respect, has been much relaxed, as will be seen by the uniform current of modern decisions. Yet, upon so grave a question as that of the life or death of a fellow citizen, I am not prepared to say that the separation of the jury, contrary to the instructions of the Court, and mingling with the throng about the court-house, should not affect their verdict. But I do not deem it necessary for me to express an opinion upon this point, because I think it abundantly proved that these two jurors not only separated from their fellows, and ate and took cakes with them on their return, but that they also drank whiskey. That Lamb also conversed on the subject of the matter in issue, is not fully negatived by Swartwout. He admits that he heard Lamb in conversation on the steps of the jail, he does not know on what subject; but another witness tells us that it related to the trial. This was while Swartwout was at a distance of 5 or 6 rods from Lamb, on the way to the court-house. It is true that the witness who speaks to that conversation, and renders details, has given a different history; but his affidavit is somewhat confirmed by the circumstances stated in Swartwout’s affidavit. I think I am warranted from the *39proof, in adding to the other misconduct of these jurors, that conversation was held by some bystander, at least with Lamb, upon the subject which he was engaged in trying. It has been properly observed, that there is very great difficulty in laying down a general rule which shall govern in these cases. But I am willing to say, that in no case, where it appears that any of the jury separate from their fellows contrary to the direction of the Court, make use of strong drink, and converse upon the matter which they are impannelled to try, would it be safe to sanction their verdict. The prisoner must be remanded to the county of Steuben, and a new trial had at the next Court of Oyer and Terminer in that county.

Rule accordingly.